1. Mental Health as a Safety Issue
The New WorkSafeBC Regime
Vancouver Employment and Labour Conference
October 26, 2012
Richard Press 604.643.6444
2. Mental Health as a Health and Safety Issue
• On July 1, 2012, the government amended section 5.1 of the
Workers Compensation Act
• Focus of amendment is mental health as a health and safety
issue.
• Focus is on mental injury that occurs separate and distinct
from a physical injury
3. Why the Change
• In 2009, Court of Appeal found the legislation and policy
contrary to s.15(1) of the Charter as too restrictive in
compensating mental illness
• Shortly after, CUPE launched a human rights challenge on
the basis of exclusion of gradual onset mental disability
• Bullying and harassment are political issues
4. What Changed
Was Is
Mental Stress Mental Distress
Physician or Psychologist Psychiatrist or Psychologist
Sudden and unexpected traumatic one or more traumatic events and
event one or more significant work-
related stressors
5. Mental Stress vs. Mental Disorder
• Not a material change
• Continued requirement for DSM recognized mental condition
• Continued exclusion of mental health issues arising from
changed terms of employment
7. Causation
• Two part test for claim to be compensable:
• Event must be “out of or in the course of” employment
• Event must cause mental disorder
• Trauma must be solely from employment
• Gradual onset mental disability must be “predominantly” from
employment
8. Amendments Narrow Scope
• Example: The stressed city employee
• Found a dead body
• Took two weeks off due to trauma
• Psychiatrist found the worker was healthy (no DSM
recognized disorder)
• Claim denied
9. Amendments Maintain Scope
• Example: The bi-polar office worker
• Employee takes sick leave due to bi-polar disorder
• Psychiatrist found employee condition pre-existing and
unrelated to work
• Claim denied
10. Amendments Broaden Scope
• Any traumatic event may be compensable - no longer need
be “sudden and unexpected”
• Gradual onset mental disorder compensable - provided
arises from “significant work-related stressors”
• Bullying and harassment expressly recognized as potential
“significant work-related stressors”
11. Significant Work-Related Stressors
• Perhaps single most important change
• Recognizes gradual onset mental disability as compensable
injury
• Act expressly recognizes that work-related stressors include
“bullying or harassment”
12. Bullying and Harassment as a Safety Issue
• Bullying and harassment are now safety issues
• Impacts not only compensation, but also:
• Prevention
• Retaliation
13. Prevention Issues
• Part 3 of the Act: OH&S
• Section 115: An employer must:
• Ensure a safe workplace; and
• Remedy any workplace conditions hazardous to the
health and safety of employees
14. Joint Health and Safety Committee
• Section 125: Any employer with 20 or more workers must
have a joint committee
• Section 130: Joint committee’s duties include advising on
safety issues
15. Retaliation Issues
• Section 151: Cannot discriminate because a worker
addresses health and safety issue
• Discrimination includes changing terms and conditions of
employment (including dismissal)
• High standard on employer:
• Reverse onus
• Taint
16. Retaliation Scenario #1
• Manager unhappy with employee asks HR to terminate
• Poor performance reviews, lots of complaints
• HR agrees to terminate employee.
Employee says he complained of bullying and termination
“tainted” by retaliation
17. Retaliation Scenario #2
• Employee alleges manager is bullying her
• Investigate and determine it is a personality dispute
• Investigation finds manager’s comments fair, but abrasive
• Employer moves employee to another location
Employee says move retaliation for complaint
18. WorkSafeBC Response
• Mediation
• Investigation:
• Was there bullying?
• Was the change of employment term due to the
complaint?
• Decision (May take several years)
• Remedy (Section 153: make whole powers)
19. What is Bullying
• BullyFreeBC describes bullying as:
“Words, gestures and actions which tend to annoy, harm,
abuse, torment, pester, persecute, bother and embarrass
another person, as well as subjecting someone to vexatious
attacks, questions, demands or other un-pleasantries
including ignoring and isolating them.”
www.bullyfreebc.ca
20. What is Harassment
• The BC Human Rights Coalition proposes harassment be
defined as:
“Any inappropriate conduct, comment, display, action, or
gesture by a person that adversely affects the worker's
psychological or physical well-being or that a reasonable
person knows or ought to know would cause a worker to be
humiliated or intimidated.”
www.bchrcoalition.org/documents/NewsletterMAY2011.pdf
21. What is Bullying and Harassment
• No definition in Act or policy
• Must be “significant”
• Not generally interpersonal conflict
• Unless interpersonal conflict is “threatening or abusive”
• As subjectively interpreted by the WorkSafeBC
investigator
22. Refusal to Work
• Division 5 of Part 3 of Act
• Not yet in force
• Broader than OHS Reg 3.12
• Applies only to unsafe operation of tool or process
• An employee who felt bullied could stop work and call in
WorkSafeBC to investigate
23. Transition Issues
• Amendment not retroactive
• If you have a section 5.1 complaint in the WorkSafeBC
appeal process, likely will be referred back to Review
Division for factual assessment under new legislation
24. Take Away Points
• Consider harassment and bullying as health and safety
issues
• Develop a policy - use your Joint Committee
• Encourage early reporting of work-related stressors
• Educate your entire workforce about the policy
• Take complaints seriously – have a clear investigation
process
• Assist employees file WorkSafeBC claims as required
25. THANK YOU
Richard Press 604.643.6444
Davis LLP
