The British Columbia government recently passed amend-ments to
Workers Compensation Amendment Act 2011, to come
into effect on July 1, 2012. The Minister of Labour had introduced
the amendments on May 2, 2012, proposing further changes to the
Workers Compensation Actto address the issue of
The new amendments clarify that a worker is entitled to
compensation for a "mental disorder", as opposed to
mental stress, if that mental disorder is either: (i) a reaction to
one or more traumatic events arising out of and in the course of
the worker's employment, or (ii) predominantly caused by a
significant work-related stressor, including bullying and
harassment, or a cumulative series of such stressors, arising out
of and in the course of the worker's employment.
The mental disorder must be diagnosed by a psychiatrist or
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. The Workers Compensation Board (the Board) may appoint a
psychiatrist or psychologist to review such a diagnosis and the
Board may consider that review in determining whether a worker is
entitled to compensation for the mental disorder. Furthermore, in
order to be eligible for compensation, the mental disorder cannot
be 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 working conditions, to discipline the
worker, or to terminate the worker's employment.
These changes to the Workers Compensation Act apply to
every decision of the Board or the Workers Compensation Appeal
Tribunal on or after July 1, 2012, including decisions in respect
of claims made but not finally adjudicated before July 1, 2012.
British Columbia is the fifth province to pass anti-workplace
bullying legislation. Quebec was the first to incorporate
anti-bullying legislation into its Act Respecting Labour
Standards in 2004. Saskatchewan expanded the definition of
harassment under its Occupational Health and Safety Act in
2007 to include personal harassment such as bullying in the
workplace. In 2009, Ontario also expanded the definition of
"workplace harassment" under its Occupational Health
and Safety Act to encompass bullying in the workplace. In
2011, Manitoba made changes to its Workplace Health and Safety
Act to include protection from workplace bullying.
The amendments to B.C.'s Workers Compensation Act
are a significant step in dealing with workplace bullying and are
intended to provide a more streamlined and simple method for
targeting psychological harassment and bullying in B.C. workplaces.
The long-term impact of these amendments will not be known for some
time. The annual cost impact of these wage-loss claims is estimated
at C$18- to C$20-million, excluding the administration costs of
adjudicating claims or the anticipated increase in registered
claims requiring adjudication. Additionally, it is unclear to what
extent these amendments will impact the adjudication of matters by
other tribunals. The B.C. Human Rights Tribunal, for instance, has
jurisdiction to deal with certain types of harassment in the
workplace where the harassment is based on discrimination under the
Human Rights Code. The overlap between the two
administrative bodies can lead to a multiplicity of claims by
employees and a consequential cost increase to employers.
As a result, it is prudent for employers to revisit their
workplace policies to ensure that bullying and workplace harassment
are being adequately addressed in order to ensure statutory
compliance and mitigate against the risk of these claims in the
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Back in July 2012, we covered "PVYW v Comcare" (No 2),  FCA 395, which concerned an employee in the HR department of an Australian government agency who was injured on a work-related trip to a country town in New South Wales.
The employee, Ashworth, alleged that the manager demanded that she close the door and then positioned herself in front of the closed door and started screaming and pointing her finger in the employee’s face.
A discussion on the judicial decision in a recent case, where a BC employer has successfully defended a claim for constructive dismissal despite taking away supervisory duties and moving the employee from an office to a cubicle.