It is often difficult to determine whether personal harassment,
rudeness or simple bad manners meets the threshold of a
"significant work related stressor" potentially
qualifying the target of such behaviour for Workers'
Compensation benefits. Under the Workers' Compensation
Act, an employee is entitled to compensation for a mental
disorder that is either a reaction to one or more traumatic events
or "is predominantly caused by a significant work-related
stressor" and is diagnosed by a psychiatrist or psychologist
as a mental or a physical condition. The exception is where the
condition relates to an employer's decision to change work to
be performed or working conditions, or a decision to invoke
discipline or terminate employment.
In a recent decision of the Workers' Compensation Appeal
Tribunal (WCAT – 2016 – 00642, issued on
March 1, 2016), the Tribunal provided some guidance as to what
conduct could establish a claim.
The worker in question was a residential support worker in a
group home setting dealing with clients with mental health and
addiction issues. Her undisputed evidence was that beginning in
March of 2013 her cross-shift co-worker stopped sharing relevant
information with her that she needed in order to care for the
residents. When a former co-worker was promoted to supervisor, both
he and the co-worker ignored the claimant's emails, would hang
up on her during work-related telephone conversations, would not
pass relevant information on to her so that she could perform her
work, and called her at home and yelled at her. She essentially was
given the cold shoulder and felt alone and ostracized.
The employer argued that the difficulties faced by the worker
should be characterized as "inter-personal conflict". The
worker's representative argued that the conduct constituted
bullying and harassment.
The Tribunal recognized that not all inter-personal conflict
that is the result of conduct that is rude or thoughtless or in bad
taste or unprofessional will be considered abusive. However, such
conduct that a reasonable person ought to have known would cause
humiliation or intimidation crosses the threshold
into bullying and harassment.
The Tribunal gave some useful guidance as to the kinds of
behaviour that would constitute a "significant work-related
where interpersonal conflict results
in behaviour that is considered threatening or abusive;
conduct that is intended to, or
should reasonably have been known would, intimidate, humiliate or
degrade an individual;
conduct that constitutes verbal
aggression or insults;
sabotaging a person's work or
engaging in targeted social isolation;
conduct that is excessive in
intensity and/or duration from what is experienced in the normal
pressures or tensions of the employment.
Where the line will be drawn is often difficult to discern. In
this case, both the Claims Adjudicator and the Review Officer had
determined that, while the conduct "...may have been upsetting
and stressful, it was not significant and/or beyond the normal
pressures or tensions of a worker's employment and was neither
abusive nor threatening". Clearly, the WCAT Vice Chair saw it
differently and reached a different conclusion finding that the
worker had developed a mental disorder arising out of and in the
course of her employment and allowing her appeal.
The bottom line is that interpersonal conduct that (a) a
reasonable person would find intimidating or humiliating, (b) is
beyond the normal pressures or tensions of the work place, and (c)
is either intense or of some duration, will likely qualify as a
"significant work related stressor" thereby providing the
basis for a claim if the other preconditions are met.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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.
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