Bill 14, or the Workers' Compensation Amendment Act, 2011
received Royal Assent on May 31, 2012. Among other things, the Act
expressly addresses bullying and harassment, and amends section 5.1
of the Workers' Compensation Act. Section 5.1 currently
requires that, in order to receive workers compensation benefits
for a mental disorder, the mental disorder must have been an acute
reaction to an event in the workplace. Come July 1, 2012, an
employee will have a compensable claim for mental stress resulting
from: traumatic events in the workplace; a significant work-related
stressor; or a cumulative series of significant work-related
WorkSafeBC, the entity tasked with the administration and
implementation of the Workers' Compensation Act, must bring its
Policies (which are applied by the Officers of the Workers'
Compensation Board in the course of adjudicating claims) into line
with these changes to Section 5.1.
To this end, WorkSafeBC's Policy and Regulation Division has
developed a draft Policy which addresses the changes to the way
claims of mental disorder are adjudicated. The Discussion Paper
accompanying the draft Policy identifies the challenges of
adjudicating claims of gradual onset stress, and notes the lack of
experience with such claims at the Workers' Compensation Board.
However, the Policy, among other things, attempts to put some
limits on the stress claims that may be advanced by employees by
requiring that the stressor complained of must exceed the intensity
or duration expected of the normal pressures associated with the
workplace, and excludes interpersonal conflicts to the extent those
conflicts do not include threatening or abusive behaviour such as
bullying or harassment. Regardless however, it appears that
Officers of the Board will retain a fair bit of discretion as to
what stressors will, and will not, be accepted in the context of
the new Section 5.1 and Policy, and employers can expect that the
bounds of this discretion will be the subject of challenge at at
least the Board and the Workers' Compensation Appeal
In contrast to British Columbia's new and broad approach to
claims of mental disorder, Ontario, Newfoundland and Labrador, Nova
Scotia, Prince Edward Island, New Brunswick and Manitoba have all
implemented legislation which limits an employee's ability to
claim compensation for gradual onset stress.
WorkSafeBC estimates that the acceptance of claims under the new
Section 5.1 will result in the acceptance of an additional 300
wage-loss claims annually, with an estimated cost impact of $18 to
$20 million dollars.
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A recent decision from the Supreme Court of British Columbia, Ly v. British Columbia (Interior Health Authority) 2017 BCSC 42, provides helpful clarification of the law on termination of probationary employees on the basis of "suitability" and sends a cautionary note about the importance of fair and objective assessments during probationary periods.
The Ontario Court of Appeal recently gave employees and employers a valuable reminder: a breach of an employment contract does not, in and of itself, constitute a constructive dismissal. Even if the breach translates into hundreds of thousands of dollars not being paid.
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