Employer’s Corner – WorkSafeBC Bullying and Harassment Prevention and Local Governments

Introduction

Effective July 1, 2012, the Workers Compensation Act (the “Act”) was expanded in the context of the definition of mental disorders under section 5.1 to include an injury caused by “work-related stressors”, including bullying or harassment. Also, effective November 1, 2013, the Occupational Health and Safety Prevention Manual added new policies regarding the obligations of employers, workers and supervisors for the prevention and minimization of bullying and harassment in the workplace.

Between July 1, 2012 to October 31, 2013 there were approximately 291 Review Board decisions, 36 of which were accepted as compensable claims, 30 were returned to the Board for reconsideration or further investigation, and 41 additional cases went to the Workers’ Compensation Appeal Tribunal (“WCAT”) of which 16 were accepted, two were returned to the Review Board for reconsideration, and one was denied.

The Changes

Section 5.1 of the Act defines “mental disorder” as:

“5.1(1)   Subject to subsection (2) a worker is entitled to compensation for 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 psychologist as a mental or physical disorder, 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.”

In addition to this new definition, the WorkSafeBC Occupational Health and Safety Prevention Manual was amended effective November 1, 2013. The policy now defines “bullying and harassment” as:

(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.

Application to Elected Officials

The Act applies to “workers” and “employers”. Individual elected officials are neither employers nor workers under the Act, therefore the policy against bullying and harassment would not apply as between elected officials of a local government. However, as the local government is an employer, there is a duty on a local government to take those steps necessary to ensure that bullying and harassment are minimized or prevented where possible in the workplace. This obligation would apply to interactions between elected officials and local government employees. The elected official must not engage in bullying and harassment as they may be seen as acting on behalf of the employer in some circumstances, and as well they would constitute a ‘person’ as defined below.

Definition of ‘Person’

A ‘person’ includes any individual, whether or not they are a workplace party. This means that a person could be a workplace party such as an employer, supervisor, or co-worker, or a non-workplace party such as a member of the public or anyone a worker comes into contact with at the workplace.

Obligations of Employers

Under the Act, the obligations of the employer at sections 115(1)(a) and 115(2)(e) state:

“115(1) Every employer must

(a) ensure the health and safety of

(i) all workers working for that employer, and

(ii) any other workers present at a workplace at which that employer’s work is being carried out, and …

115(2) Without limiting subsection (1), an employer must …

(e) provide to the employer’s workers the information, instruction, training and supervision necessary to ensure the health and safety of those workers in carrying out their work and to ensure the health and safety of other workers at the workplace,”

An explanatory note to WorkSafeBC’s Occupational Health and Safety Prevention Manual states:

“This policy, which flows from the above sections in the Act, discusses employer duties regarding bullying and harassment. It identifies what WorkSafeBC considers to be reasonable steps for an employer to take to address the hazards of workplace bullying and harassment.”

WorkSafeBC’s Reasonable Steps to Take Place to Address Workplace Bullying and Harassment

  1. Develop a policy statement with respect to workplace bullying and harassment not being acceptable or tolerated – template on their website;
  2. Take steps where possible or otherwise minimize workplace bullying and harassment;
  3. Develop and implement procedures for workers to report incidents or complaints of workplace bullying and harassment – template on their website;
  4. Develop and implement procedures for how the employer will deal with incidents or complaints of workplace bullying or harassment;
  5. Inform workers of the policy – posters on WorkSafeBC website;
  6. Train supervisors and workers on:

(a) recognizing the potential for bullying and harassment;

(b) responding to bullying and harassment of workers and supervisors; and

(c) applying and complying with the employer’s policies and procedures on bullying and harassment.

(PowerPoint available on the WorkSafeBC website)

Obligation of Workers

The Act imposes obligations on workers under s. 116 as follows:

A worker’s obligation to take reasonable care to protect the health and safety of themselves or others includes:

(a) not engaging in bullying and harassment of other workers, supervisors, the employer or persons acting on behalf of the employer;

(b) reporting if bullying or harassment is observed or experienced in the workplace;

(c) applying and complying with the employer’s policies and procedures on bullying and harassment.

 Obligation of Supervisors

Section 117 sets out a supervisor’s obligations as follows:

(a) not engaging in bullying and harassment of other workers, supervisors, the employer or persons acting on behalf of the employer;

(b) applying and complying with the employer’s policies and procedures on bullying and harassment.

Policy or Law?

The policies in question have been enacted under the authority of sections 115, 116 and 117 of the Act. These sections fall under Part 3, Occupational Health and Safety. While the policies are not law in and of themselves, they are the standards against which the Board will determine whether or not the statutory obligations of the Act have been met. The preamble of the applicable sections in the Prevention Manual states:

This policy provides a consistent legal framework for stakeholders, WorkSafeBC Officers and decision-makers identifying what WorkSafeBC considers to be reasonable steps for an employer to prevent where possible, or otherwise minimize, workplace bullying and harassment.

The Labour Relations Exclusion

On June 5, 2013, the Workers’ Compensation Appeal Tribunal (WCAT-2013-01593) commented on the definitions of “threatening” or “abusive” behaviour as follows:

“Both Board policy and the practice directive provide that interpersonal conflicts are not significant stressors unless the conflict results in abusive or threatening behaviour. “Abusive” is defined in the Oxford English Dictionary as “extremely offensive and insulting; characterized by illegality or physical abuse”. It is defined in Black’s Law Dictionary, Eighth Edition as “characterized by wrongful or improper use”. “Threatening” is defined in the Oxford English Dictionary as “make[ing] or express[ing] a threat to someone of an intention to inflict injury, damage, or other hostile action, as retribution”. It is defined in Black’s Law Dictionary, Eighth Edition as communicating intent to inflict harm or loss on another.”

In this same decision, the Vice-Chair further considered the definition of “cause” with respect to the “labour relations exclusion” in section 5.1(1)(c):

“The language of section 5.1(1)(c) is specific, in that if the traumatic event of work-related stressor is caused by a decision of the worker’s employer relating to the worker’s employment, the resulting mental disorder is excluded from compensation. This requires consideration of the meaning of “cause” as contemplated by section 5.1(1)(c) of the Act. Cause is defined in Black’s Law Dictionary, Eighth Edition as “to bring about or effect”. The Oxford English Dictionary defines cause, in part, as “a person or thing that gives rise to an action, phenomenon, or condition; make happen”. Therefore, if the worker’s mental disorder is brought about, made to happen, or arises from the action or decision of the employer relating to the worker’s employment, the resulting mental disorder is excluded from compensation.”

A new Workers’ Compensation Appeal Tribunal decision, WCAT-2013-03061 (November 1, 2013), provided that in order to decide:

“That the ‘labour relations exclusion’ will not apply requires evidence of extremely egregious conduct on the part of the employer. The statute includes the ‘labour relations exclusion’ in order to ensure that employers remain able to manage their workplaces and employees in an effective manner, while acknowledging that such management efforts often occur in difficult or challenging situations and workplaces. Labour relations management can and should include a wide spectrum of actions: the intention of this exclusion is to acknowledge that worker reactions to management efforts in this regard can often be emotionally or psychologically difficult, and thus appear similar to what a worker may experience in response to mental stress. However, in order for an employer’s conduct to cross that line and be viewed as stepping out of the ‘labour relations exclusion’ and into harassment and bullying, in my view it must be extremely egregious behaviour, such that a reasonable person considering it would clearly see it as abusive or personally threatening.”

Interpersonal Relations

The WCB Board has drawn the line between a pattern of harassing behaviours by one or more co-workers and interpersonal conflict. If upon investigating the employer finds that the real situation is animosity between two co-workers arising out of the workplace such as competitiveness and/or lack of respect for another’s abilities in the performance of their duties or outside of the workplace, this would be considered interpersonal relations and not bullying or harassment. As long as the interpersonal relations are not threatening, and so far that appears to be physically threatening, or abusive, then the claim would not be compensable.

Traumatic Events

Traumatic events need to be handled with care and provide support early. A single event of bullying and harassment could be found to be a traumatic event if found to be traumatic or emotionally shocking. Single events must only be of causative significance to the resulting disorder (a lower standard) than a significant stressor or series of stressors which must be the predominant cause. It is therefore easier for a claimant to succeed if the event is characterized as a traumatic event and not a significant stressor.

Claims Policy Issues

The following are key issues addressed in the Claims Policy:

  1. Diagnosis – the worker must be diagnosed from a mental disorder pursuant to the most recent Diagnostic and Statistical Manual by a psychologist or a psychiatrist.
  2. Definitions – the Claims Policy identifies a traumatic event as an emotionally shocking event which is generally unusual and distinct from duties and interpersonal relations of a worker’s employment. Significant work-related stressors must be excessive in intensity and duration from what is experienced in the normal pressure and tensions of a worker’s employment.
  3. Arising out of in the course of employment – Some criteria suggested by WCAT include:
    (a) if the activity was for the benefit of the employer;(b) during hours of paid employment;(c) at the bequest of the employer; or(d) on the employer’s premises. (WCAT-2013-02025)WorkSafeBC has also established a practice directive which provides that a single incident of bullying and harassment may be classified as a traumatic event, rather than a single work-related stressor, depending on the nature of the event and whether it was “emotionally shocking” or “traumatic”.
  4. Employment in a high stress occupation is not a bar to a claim under section 5.1.  There have been a number of review division decisions in relation to what constitutes a “traumatic event” or a “significant stressor”.
    Where the event can be classified as “unusual and distinct”
    from the duties of the worker’s employment, it may be determined to be a traumatic event. WCAT has suggested three factors to consider when determining causation for a traumatic event:
  • if there is a connection between the mental disorder and the traumatic event(s), including whether the event(s) were of sufficient degree and/or duration to be of causative significance;
  • whether any pre-existing non-work related medical conditions were a factor in the mental disorder; and
  • whether any non-work related events were a factor in the mental disorder. (WCAT-2013-02504)

This formulation of causation for traumatic events mirrors that of a ‘but-for’ test in negligence. But-for causation is a much lower threshold for traumatic events than the predominant cause test for significant stressors. A mental disorder arising from a traumatic event will be compensable if the traumatic event was a significantly measurable cause rather than the primary cause of the mental disorder required for significant stressors.

The Tribunal also provided guidance for determining whether a work-related stressor is “significant”. While a stressor that is excessive in intensity and/or duration from what is experienced in the normal pressures or tensions of a worker’s employment is clearly significant, a claim made by a worker employed in an occupation characterized by a high degree of stress should not be denied simply because the worker is normally exposed to an intense level of stress. They must be reviewed as to what are the normal pressures.

Notably, while WCAT did not address the issue of subjective feelings directly implicit in this decision is that subjective experiences will be considered when evaluating whether an event is, in fact, traumatic, but not solely on the worker’s subjective beliefs.

Assessment of a Compensable Claim

The Practice Directive for the Claims Division asks these questions as to whether there is a compensable claim pursuant to section 5.1:

  1. Does the worker have an American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM) diagnosed mental disorder by a registered psychiatrist or psychologist?
  2. Was there one or more events, or a stressor, or a cumulative series of stressors?
  3. Was the event traumatic or the work-related stressor significant?
    • significant when in it is excessive in intensity and/or duration
    • generally bullying and harassment reflect a pattern of behaviour that is intended to, or should reasonably be acknowledged to intimidate, humiliate or degrade an individual
    • interpersonal conflicts are not significant stressors unless abusive or threatening such as an intention to inflict harm or loss on another
  4. Did the event(s) arise out of or in the course of employment?Did the event(s) arise out of or in the course of employment?
    • are there pre-existing conditions that may have been a factor and any work or non-work related incidents that may have been a factor
  5. Was the mental disorder 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
    • also including decision of the employer relating to workload and deadlines, work evaluation, performance management, transfers, change in job duties, lay-offs, demotions and reorganizations
    • the practice direction does not consider tone or manner in which the message is communicated as long as arises out of and in the course of employment

Preventing or Minimizing Significant Stressors

It is important for the employer to prevent or minimize significant stressors. These events normally occur over time and therefore there is time to address the concerns if there is early reporting and early intervention. Supervisors and workers must be trained to recognize negative conduct that occurs to them or that they observe, and report of such conduct. Supervisors must be trained how to proactively recognize and respond to potential issues.

In relation to preventing or minimizing bullying and harassment by members of the public, one suggestion would be to post signs advising the public that respectful communication is expected and that WorkSafeBC requires an employer to prevent or minimize bullying and harassment. Further, a supervisor may intervene to prevent this behaviour, if necessary.

Reporting Requirements

Division 5 of the Act, s. 54 requires employers to report most significant injuries within 3 days including any injury for which the worker seeks medical attention from a healthcare worker.

Next Steps

  • Go over all policies and clauses within and external to Collective Agreements regarding Bullying and Harassment and ensure they comply with the Act and policies.
  • Develop and implement a policy statement and a reporting and investigating policy, or add bullying and harassment to your current reporting and investigation policy. (Templates on WorkSafeBC website)
  • Advise workers of new policies. (WorkSafeBC posters)
  • Train employees and employers about bullying and harassment. (PowerPoint available on WorkSafeBC website)
  • Post notice to the public advising of the need for respectful behaviour and that in order to prevent or minimize bullying or harassment a supervisor may intervene.