Tragic cases and more mundane legislative changes have everyone
talking about bullying and harassment. For employers it is
necessary to take a step back and consider what is not
workplace bullying and harassment.
In BC in particular, with the advent of the new mental disorder
provisions of the Workers Compensation Act, there has been
a surge of uninformed discussion creating an expectation of many
employees that anything they don't like in the workplace can be
turned into a claim with WorkSafeBC.
This is largely the fault of Bill 14 (the legislation that
changed section 5.1 of the Workers Compensation Act) being
commonly spoken of as a law about bullying and harassment. It is
true that section 5.1 refers to bullying and harassment, but only
as one of many things that might be "a significant
work-related stressor" that could support a claim for
As for the claims we often see from employees unhappy about a
performance review or about how they are managed, section 5.1 is
clear – it does not cover employer decisions about the worker
or the worker's employment, including about work to be
performed, working conditions, discipline or termination.
Finally, before a workers compensation claim can succeed,
bullying and harassment at work must be the predominant cause of a
"mental disorder" diagnosed by a psychiatrist or
psychologist in accordance with current psychiatric standards.
We will continue to see cases that fall everywhere on the
spectrum and it will take some time before the message is
understood: not all problems, upset, discomfort or discontent at
work, even if caused by poor or insensitive management or by silly,
stupid or insensitive conduct of fellow workers, will be bullying
and harassment for which an employee can expect redress.
It is worth quoting from a decision that is now 18 years old but
which is repeatedly referred to today in this overheated bullying
and harassment environment:
I do not think that every act of
workplace foolishness was intended to be captured by the word
"harassment." This is a serious word, to be used
seriously and applied vigorously when the occasion warrants its
use. It should not be trivialized, cheapened or devalued by using
it as a loose label to cover petty acts or foolish words, where the
harm, by any objective standard, is fleeting. Nor should it be used
where there is no intent to be harmful in any way, unless there has
been a heedless disregard for the rights of another person and it
can be fairly said "you should have known better.
BCGEU v. Government of British
Columbia,  B.C.C.A.A.A. No. 131 (QL) (Laing)
You can look
here for previous posts about Bill 14 and mental disorders
under the Workers Compensation Act.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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