“Stress”, “Bullying” and “Harassment” in the Workplace

“Stress”, “Bullying” and “Harassment” in the Workplace
WorkSafe BC published new policies on “bullying” and “harassment” on March 20, 2013 pursuant to last summer’s passage of the Amendments to the Workers Compensation Act. They impose significant responsibilities on employers.
Workers Compensation Amendment Act – Bill 14

General
The Workers Compensation Amendment Act (the “Amendment Act”)1 and came into force on July 1, 2012, amending provisions in the Workers Compensation Act (the “WCA”).2 The most significant change amended s.5.1 of the WCA relating to compensation for workplace stress that does not result from an injury. The provision now reads as:

Mental Disorder
5.1 (1) Subject to subsection (2), a worker is entitled to compensation for a mental disorder that does not result from an injury for which the worker is otherwise entitled to compensation, only if the mental disorder
(a) either
(i) is a reaction to one or more traumatic events arising out of and in the course of the worker’s employment, or
(ii) is predominantly caused by a significant work-related stressor, including bullying or harassment, or a cumulative series of significant work-related stressors, arising out of and in the course of the worker’s employment,
(b) is diagnosed by a psychiatrist or a psychologist as a mental or physical condition that is described in the most recent American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders at the time of the diagnosis, and
(c) is not caused by a decision of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the worker’s employment.

3 While the former legislation only covered “sudden and unexpected” trauma that led to “mental stress”, worker’s compensation coverage now extends to reactions to one or more traumatic events or a mental disorder predominantly caused by significant work-related stress or a
1 Workers Compensation Amendment Act, 2011, S.B.C. 2012, c.23 [Amendment Act].
2 Workers Compensation Act, RSBC 1996, c.492 [WCA].
3 WCA at s.5.1.
2 Cumulative series of work-related stressors.

4 The legislation specifically includes workplace bullying and harassment as a significant work-related stressor.

5 While the scope of compensable injuries has broadened significantly under the WCA there is also the addition of the more stringent requirement of a diagnosis by a psychiatrist or psychologist where previously a physician would do.

6 Disorders that have been caused by employers’ decisions relating to the employment itself continue to be excluded in the WCA.

7 The new provision will apply to claims that are filed prior to July 1, 2012 if they haven’t been adjudicated yet.

8 Threshold for Mental Disorder
As mentioned above, while the WCA now encompasses a broader range of workplace stress disorders, the threshold of diagnosis is somewhat elevated with the requirement of a psychiatrist or psychologist and the strict adherence to the Diagnostic and Statistical Manual of Mental Disorders (the “DSM”). The stress that an employee is experiencing cannot simply be usual stress that accompanies a job but an actual diagnosable mental disorder. In reviewing the diagnosis of a claimant the Board will consider the prior medical history of the worker.

9 Traumatic Events
S.5.1(1)(a)(i) makes reference to one or more traumatic events. A traumatic event will be interpreted as an emotionally shocking event experienced first hand. While this will usually be something extraordinary that isn’t often found in the course of the job, some workers, such as emergency workers, regularly see traumatic events and are not precluded from this section. However their job duties would be taken into consideration.

10 Significant Work-Related Stressor
S.5.1(1)(a)(ii) covers significant work-related stressors, either a single incident or a series of them.

11 The Claims Manual explains that to be significant an incident must be excessive in either intensity or duration from the normal pressures of employment. It is not meant to compensate employees for general interpersonal conflicts. However, incidents of work-place
4 “Legislative Changes to Adjudicating Mental Disorder Claims” WorkSafeBC (11 September 2012), online: WorkSafeBC <http://www.worksafebc.com> [“Changes to Adjudicating”].
5 WCA, supra note 2 at s.5.1(1)(a)(ii).
6 WCA, ibid at s.5.1(1)(b).
7 WCA, ibid at s.5.1(1)(c).
8 “Changes to Adjudicating”, supra note 4.
9 WorkSafeBC, Rehabilitation Services & Claims Manual (11 September 2012) online: WorkSafeBC <http://www.worksafebc.com> at C3-13.00 [Claims Manual].
10 Ibid.
11 WCA, supra note 2 at 5.1(1)(a)(ii).
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bullying or harassment have been specifically included in the legislation as a significant work-related stressor.
Causation
When it comes to mental disorders, causation can be a difficult thing to pinpoint. In order for the WCA to apply, the mental disorder must be a reaction arising out of and in the course of the workers employment.12
The traumatic or significant events must have happened at “a time and place and during an activity consistent with, and reasonably incidental to, the obligations and expectations of the worker’s employment”.13
Not only do the events have to have happened at work, but in order for the mental disorder to be compensable, the traumatic events relied on have to be significant (more than trivial) in their causation and any significant work-related stressors relied on must be the predominant cause of the mental disorder.14 While there may be other factors that relate to the causation of a mental disorder, the above requirements must be met in order for it to be compensated under the WCA.
Exclusions
A worker cannot be compensated for a mental disorder that arises due to a decision of an employer that relates to the worker’s employment. The WCA lists a number of examples in s.5.1(1)(c) such as discipline or termination, but these are inclusive and it is not an exhaustive list.15 The Claims Manual suggests that other examples include “decisions of the employer relating to workload and deadlines, work evaluation, performance management, transfers, changes in job duties, lay-offs, demotions and reorganizations.”16
Occupational Health and Safety Policies on Workplace Bullying and Harassment
As mentioned above there was a specific inclusion of workplace bullying and harassment in the amended s.5.1 of the WCA. The Provincial Government and WorkSafeBC are working to tackle this specific problem in a number of ways. The goal is to reduce bullying and its effects on workers which can lead to mental disorder that is now compensable under the WCA. The Provincial Government also wants to bring British Columbia’s policies up to date with other
12 WCA, supra note 2.
13 Claims Manual, supra note 9.
14 Ibid.
15 WCA, supra note 2 at 5.1(1)(c).
16 Claims Manual, supra note 9.
4 jurisdictions such as Saskatchewan, Manitoba, Quebec, Ontario and the federal government.
17 In fact, BC’s go further.
Occupational Health and Safety Workplace Bullying and Harassment Policy
WorkSafeBC produced a discussion paper and drafted occupational health and safety policies relating to workplace bullying and harassment. Stakeholders were able to provide feedback and comments on the Proposed Policies until September 28, 2012.18 On March 20, 2013, a Resolution of the Board of Directors approved the policies (the “Policies”) relating to workplace bullying and harassment that will go into force on November 1, 2013.19
The Policies flow from the Act, specifically s.115(1)(a) which sets out the duties of an employer to ensure the health and safety of workers, s.116(1)(a) which requires workers to take reasonable steps to protect the health and safety of themselves and others and finally s. 117(1)(a) which relates in the same way to supervisors.20
The definition of bullying and harassment will be as follows:
(a) includes any inappropriate conduct or comment by a person towards a worker that the person knew or reasonably ought to have known would cause that worker to be humiliated or intimidated, but
(b) excludes any reasonable action taken by an employer or supervisor relating to the management and direction of workers or the place of employment.21
The Resolution also includes what WorkSafeBC considers to be reasonable steps to avoid the hazard of harassment and bullying. Below is the recommendation for the steps to be taken by employers contained in the Resolution that will comprise Policy Statement D3-115-2:
(a) developing a policy statement with respect to workplace bullying and harassment not being acceptable or tolerated;
(b) taking steps to prevent where possible, or otherwise minimize, workplace bullying and harassment;
(c) developing and implementing procedures for workers to report incidents or complaints of workplace bullying and harassment including how, when and to whom a worker should report incidents or complaints. Included must be procedures for a workers to report if the employer, supervisor or person acting on behalf of the employer, is the alleged bully or harasser;
17 WorkSafeBC – Policy and Regulation Division, Discussion Paper – New Occupational Health and Safety Policies on Workplace Bullying and Harassment (11 September 2012) online: WorkSafeBC <http://www.worksafebc.com> [Discussion Paper].
18 Ibid.
19 WorkSafe BC – Resolution of the Board of Directors, 2013/03/20 – 03 (20 March 2013) online: WorkSafeBC <http://www.worksafebc.com/regulation_and_policy/policy_decision/board_decisions/2013/mar/assets/20130320-03.pdf> [Resolution].
20 WCA, supra note 2 at s.115-117.
21 Resolution, supra note 19.
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(d) developing and implementing procedures for how the employer will deal with incidents or complaints of workplace bullying and harassment including:
i. how and when investigations will be conducted
ii. what will be included in the investigation;
iii. roles and responsibilities of employers, supervisors, workers and others;
iv. follow-up to the investigation (description of corrective actions, timeframe, dealing with adverse symptoms, etc.); and
v. record keeping requirements
(e) informing workers of the policy statement in (a) and the steps taken in (b);
(f) training supervisors and workers on:
a. recognizing the potential for bullying and harassment;
b. responding to bullying and harassment; and
c. procedures for reporting, and how the employer will deal with incidents or complaints of bullying and harassment in (c) and (d) respectively;
(g) annually reviewing (a), (b), (c), and (d);
(h) not engaging in bullying and harassment of workers and supervisors; and
(i) applying and complying with the employer’s policies and procedures on bullying and harassment.22
Workers also have obligations under the Policies which include not engaging in bullying or harassment, reporting bullying behaviour that they witness and complying with all procedures set out by the employer.23 Finally, supervisors will also have obligations under the Policies that reinforce their duty to ensure the health and safety of those that they are supervising. The Resolution sets out that a supervisor’s obligation is to ensure the health and safety of workers, including complying with and applying the policies that the employer has in place to prevent bullying and harassment and not engaging in bullying or harassing behaviour themselves. 24
Stress and Human Rights
Stress in itself is not a mental disorder requiring accommodation under Human Rights schemes. As discussed above the stress must lead to a diagnosable mental disorder under the current DSM to be qualified for workers compensation.25 The same goes for Human Rights actions.
The jurisprudence in both the courts and the Human Rights Tribunal has consistently stated that stress alone is not enough to lead to the requirement of accommodation of a mental disability, the threshold under s.13(1) of the Human Rights Code (the “Code”).26 Instead, that stress has to lead to more complex disability, one that is diagnosable, in order to require accommodation from the employer and be the grounds of discrimination.27
22 Ibid.
23 Ibid at Policy Statement D3-116-1.
24 Ibid at Policy Statement D3-117-2.
25 Claims Manual, supra note 9.
26 Human Rights Code, RSBC 1996, c.210.
27 Vandale v. Town of Golden and other, 2009 BCHRT 219.
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Stress can certainly lead to more complex and diagnosable mental disabilities, but there must be evidence to confirm the disability. It is up to the claimant to prove that they have a mental disability, and the Human Rights Tribunal, much like WorkSafeBC, prefers this to be in the form of a diagnosis of a qualified mental health professional.28
While the DSM has evolved in recent years and now encompasses a wider array of disorders, basic stress is yet to be a diagnosable mental disability. The latest DSM contains an anxiety disorder called “acute stress disorder” but even this would be unlikely to be the basic stress that most employees are facing. Acute Stress Disorder arises from witnessing a severely traumatic event.29 It is not simply an accumulation of workplace stressors. The AMA is currently reviewing the DSM. Consideration is being given to including “stress” and “worry” as recognized medical disorders.
While there is a possibility that workplace stress can manifest itself into diagnosable mental disabilities, stress as we use it colloquially is not enough. The case law is clear on this point. However, if an employee is requiring accommodation due to the mental disability that stress has caused, an employer has a duty to investigate the disability, which will often result in the requirement of medical documentation to prove that the disability exists.30 If the employee does have a mental disability caused by stress then the duty of the employer is to accommodate that disability to the point of undue hardship, just like any other disability.31
Conclusion
Employers should implement or review their harassment policy to ensure that it incorporates a defined procedure for reporting, investigating and remedying potential workplace harassment. Employees and supervisors need to be educated as to the policy and their obligations both under the Policies and the WCA. Managers need to know they have a duty to inquire into and objectively review workplace situations that could constitute harassment whether or not a complaint is received. In other words, managers must actively monitor the workplace to ensure it is free of harassment and bullying and report any suspected abuses.
Any instance of potential harassment must be investigated in a fair, objective and timely manner. To ensure that the investigation possesses those qualities, the investigator should not have any prior involvement in either the issues or with the persons involved. Many employers choose to contract external resources to conduct such investigations. The purpose of the investigation is to gather all of the material facts. The investigator does not, however, determine the penalty, if any. That is the role of the employer. An automatic penalty is not appropriate. In the past, employers have frequently implemented policies where dismissal was the automatic result of harassing behavior. Many have faced wrongful dismissal actions as a result and suffered substantial damage awards where the harassing behavior has not met the ‘just cause’
28 Ford v. Peak Products Manufacturing and others, 2009 BCHRT 191 [Ford].
29 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed., text rev.) (Washington, DC: American Psychiatric Association, 2000) [DSM].
30 Ford, supra note 28.
31 Halliday v. Michelin North American (Canada) Ltd., [2006] NSHRBID No. 6.
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standard for dismissal. Discipline may not be the appropriate response. In recent years, mediation has proven effective in resolving these types of workplace issues.
A procedure will also have to be developed for responding to WorkSafe BC when a workplace harassment claim is made. This should include careful consideration of who should respond. While in some workplaces, the practice is to have the appropriate department head respond to OHS claims, we recommend that a designated human resources staff member respond to mental disorder claims, particularly those involving harassment or bullying.
This paper is current to May, 2013. It is a general statement of current law and policy in an area that will be subject to change in the near future as WCB policies and case law develop and refines the legislation. These materials do not apply to any particular fact situation or case. Individual cases and situations will require further legal advice.

Prepared by: Nicole Hamilton, Articled Student
William E MacDonald, Counsel