By Graeme McFarlane

The modern work environment is a diverse space.  The workforce has been radically transformed and to a large extent mirrors the changes that have occurred in our society.  Unfortunately, some of society’s problems are mirrored as well.  If the news reports are accurate, school yard bullying has become an endemic problem – sometimes with catastrophic results.

Workplace bullying exists as well.  When it occurs, the results go beyond the target and the bully.  It can affect how the entire workforce engages with the tasks at hand.  Recent decisions have recognized the effect that workplace bullying can have on the target.  In response, the British Columbia Workers’ Compensation regime has been amended to provide benefits for the mental distress created by this type of behaviour.

The trigger for these changes was the B.C. Court of Appeal decision of Plesne v. British Columbia Hydro and Power Authority.  Prior this decision, the legislation greatly restricted WCB claims for mental stress associated with the workplace.  A mental stress claim would only be accepted if it was an acute reaction to a sudden and unexpected traumatic event.  Mental stress resulting from systemic workplace bullying would fall under this restriction.

The Court in Plesner considered whether this restriction was contrary to section 15 of the Charter of Rights and Freedoms.  The argument made was that the WCB regime treated physical disability claims differently than psychological ones.  An employee with a physical injury only needed to show that the injury occurred at work.  An employee with a psychological injury needed to not only show that the injury occurred at work, but that it resulted from a particular type of event.  The court agreed with this argument and struck down the requirement that an unexpected traumatic event was needed to justify a psychological work injury claim.

The government enacted new legislation that greatly expands the type of mental stress claims that will be compensable in the workplace.  A claim will now be accepted if the condition is “predominately caused by a work-related stressor, including bullying and harassment, or a cumulative series of significant work-related stressors.”  However, the claim must have a factual basis, and the stressors must be identifiable.  An employee cannot make a claim of bullying or harassment without particulars of the when, where, who and what.

Interpersonal conflicts will not generally be considered for compensation under the new legislation.  The stressor must be considered as significant.  It will only satisfy this definition if the event is excessive in intensity and/or duration from what is experienced from the normal pressures or tensions of a workplace.  For interpersonal conflicts to meet this definition, they must be threatening or abusive.

Bullying and harassment are not defined in the new legislation even though they are specifically mentioned as a basis for compensation.  Therefore, there will be debate about what these terms mean.  The Canadian Centre for Occupational Health and Safety defines workplace bullying as “acts or verbal comments that could ‘mentally’ hurt or isolate a person in the workplace”.  Bullying usually involves repeated incidents or a pattern of behaviour that is intended to intimidate, offend, degrade or humiliate a particular person or group of people.  These concepts will likely form the basis of the WCB’s policies in this regard.

Harassment is slightly different than bullying.  The BC Human Rights Coalition describes personal harassment 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.”  This definition is important because harassment may exist even where the perpetrator is not intentionally trying to harass, intimidate or offend.

These definitions are quite broad.  However, it is important to note what is not bullying or harassment.  It is not interpersonal conflict or troublesome interpersonal relations.  More importantly, it is not a legitimate exercise of management rights.  In the latter case, it is not harassment for a manager to counsel an employee about poor performance or other workplace offenses even if those communications cause mental anguish.

As a result of these legislative changes, employers now have even more responsibilities in the workplace.  They must ensure that they have taken all reasonable steps to protect the health and safety of all workers.  This now includes protections from harassment and bullying.  If these circumstances exist, an employer must remedy the situation.  It is strongly advisable that all employers institute anti-bullying and harassment policies.  These policies should include definitions and an investigation process.  Should bullying and/or harassment be discovered, the employer should take reasonable steps to resolve the issues.

Employers should identify potential problems sooner rather than later.  Potential problems may arise out of over aggressive management styles, insensitive employees or lax workplace rules.  The WCB can levy significant fines against employers who allow unsafe workplaces to flourish.  It’s always best to avoid a WCB penalty claim rather than to respond to one.

Graeme McFarlane is a partner at Roper Greyell LLP which is a firm focused on partnering with companies to find solutions to workplace legal issues.

(PeopleTalk: Fall 2012)