The BC provincial government recently passed into law Bill 14 (the Workers’ Compensation Amendment Act, 2011), which amends the mental stress provisions of the Workers’ Compensation Act (the “Act”) to address bullying and harassment in the workplace.
As of July 1, 2012, an employee in British Columbia may have a worker’s compensation claim for a “mental disorder” under section 5.1 of the Act if that mental disorder is
- (i) a reaction to one or more traumatic events arising out of and in the course of employment, or
- (ii) predominantly caused by a significant work-related stressor, including bullying and harassment, or a cumulative series of such stressors, arising out of and in the course of employment.
Previously, a worker was only entitled to compensation for a workplace stress-related illness if the mental stress arose from an acute reaction to a sudden and unexpected traumatic event.
While the amendment extends the Act’s mental stress provisions, it also places limits on its application. Most notably, the mental disorder must be diagnosed by a psychiatrist or psychologist as a mental or physical condition found in the American Psychiatric Association’s Diagnostic and Statistical Manual. What’s more, a workplace stressor cannot be caused by a decision of the employer relating to the worker’s employment, including a decision to change the work to be performed or working conditions, to discipline the worker, or to terminate the worker’s employment.
WorkSafeBC, which is tasked with the implementation of the Act, has also limited the scope of the amendments in its “Proposed policies to implement Bill 14 amendments”. In determining whether an event is “traumatic” or whether a stressor “significant”, WorkSafeBC first notes that all workers are exposed to some normal pressures and tensions at work which are not subject to compensation. Instead, a “traumatic” event is an emotionally shocking event that is generally unusual and distinct from a worker’s regular employment (although the proposed policy states that this does not preclude a worker who due to the nature of his or her occupation is exposed to traumatic events on a frequent basis). A stressor is “significant” when it exceeds the intensity and/or duration expected from the normal pressures or tensions of the worker’s employment.
An important consideration which has not yet been addressed, but is of significant interest to both employees and employers, is whether this amendment will prevent employees from pursuing civil actions for workplace bullying given the provisions of the act that prevent civil suits for work injuries. As the Act only provides for wage-loss compensation, a “statutory bar” on civil claims would have, for employees, the major disadvantage of preventing the recovery of general damages for pain and suffering from work-related bullying and harassment.
Section 10(1) of the Act precludes workers from bringing legal actions against employers or other workers for “any personal injury” arising out of and in the course of employment. The terms “any personal injury” have been interpreted to include “mental stress” under the previous section 5.1 of the Act. While the new amendments extend the mental stress provisions, it would be sensible for the terms “any personal injury” to now include “mental disorder”. While this would prevent workers from pursuing civil actions for workplace bullying, it remains to be confirmed if this will be the case.
The new “mental disorder” provisions of the Act may also have the unintended effect of shielding bullies from lawsuits in a wide range of situations. This would be the case if section 5.1 creates the expectation that section 10(1) applies when the bullying is not closely related to work but is incidental to the work relationship. For example, would a victim of bullying be precluded of pursuing a civil action if the Bully works with the victim but the bullying takes place away from the workplace?
Similarly, it remains unclear to what extent the amendments to the Act will impact the adjudication of matters by the B.C. Human Rights Tribunal, which has jurisdiction to deal with certain types of harassment in the workplace where it is based on discrimination under the Human Rights Code. Unlike the Workers’ Compensation Act, the Code contains a provision which provides for the deferral of a human rights proceeding until the outcome of another proceedings is known (s. 25(2)), and a provision which provides the Tribunal with the discretion to hear or dismiss a complaint where it has been dealt with by another proceeding (s. 27(1)(f)).
If workplace bullying relates to matters such as religion, sex, or disability, it may then be the case that both the Workers’ Compensation Board and the Human Rights Tribunal will have jurisdiction. It will thus be up to the Human Rights Tribunal to decide, on a case by cases basis, whether to exercise its jurisdiction or choose to dismiss a complaint that has already been dealt with under the Workers’ Compensation Act.
Overall, the impact of these amendments will be significant on employers. WorkSafe BC estimates an additional 300 accepted wage-loss claims annually, with an annual cost of $18 to 20 million dollars.
WorkSafeBC is currently developing a prevention tool kit to assist employers in understanding, preventing and addressing bullying and harassment in the workplace, which is expected to be available in the fall of 2012. In the meantime, in order to keep workplace insurance premiums low and avoid wage-loss claims, employers are advised to review their workplace policies and provide training to ensure that bullying and harassment are being adequately addressed. It is also important to promptly and thoroughly investigate all bullying and harassment concerns raised by employees.
The amendments to the Act apply to all WorkSafeBC and Workers Compensation Appeal Tribunal decisions on or after July 1, 2012 including decisions in respect of claims made but not finally adjudicated before July 1, 2012.
Thomas Senecal is a Summer Student at Pushor Mitchell. He can be reached at [email protected]. Alf Kempf is the Chair of Pushor Mitchell’s Employment Law Group. He can be reached by phone at (250) 869-1215, or by email at [email protected].
