The Workers Compensation Act (“WCA”) provides a complex regime for compensating workers for bullying and harassment in the workplace.
The legislative requirements are set out at Section 5.1 of the WCA1 with interpretations of the legislative requirements contained at Chapter 3, Policy 13 of the Rehabilitation Services & Claims Manual, Volume II.2
The WCA and related policies can have the effect of setting up barriers for compensation that limit the scope for when compensation is made payable to workers who have been bullied and harassed. There is a basic threshold for all claims, including those involving bullying and harassment, for there to be a disability, injury, or disease in order for compensation to be triggered.
However, the test for causation for bullying and harassment is that of a predominant cause. This means that the bullying and harassment must be the primary or main cause. The predominant cause test is a higher threshold than other places in the WCA. For instance, those suffering a physical injury must demonstrate only that the causal factor in the workplace was of causative significance or more than de minimis.
This creates a disparity between those seeking compensation for physical injuries and those suffering from psychological injuries under the same compensation system. Although a challenge has yet to be made on judicial review, this disparity results in more proof being required for psychological injuries than physical injuries. This is arguably a breach of the Charter.
A second barrier for compensating bullying and harassment is that a diagnosis of a disability, injury, or disease must be made by either a psychiatrist or psychologist and must be described in the most recent American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders at the time of the diagnosis. A diagnosis from a specific type of medical provider is unique to Section 5.1 of the WCA. Cancer does not need to be diagnosed by an oncologist nor a fractured foot by a podiatrist. Mental Disorder claims, however, are required by the WCA to be diagnosed by a specific type of medical provider. This is particularly problematic in rural communities where a lack of psychological resources has been noted by the BC Psychological Association.
A third barrier for compensation is what is commonly referred to as the labour relations exception. Section 5.1(1)(c) of the WCA sets out that compensation will be provided if the bullying and harassment is not caused by a decision of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the worker’s employment. Under this language, a worker who has been overburdened with work expectations, not provided with sufficient resources and time, and then terminated for not meeting these expectations would not be able to seek compensation if a disability results.
The labour relations exception has been used in questionable denials by WorkSafeBC case managers to deny compensation. For example, the exception has been used to deny compensation when workers have been referred to by racial epithets. In 2014, a Workers’ Compensation Appeal Tribunal Vice-Chair, over-turned a decision by a case manager who denied compensation for bullying and harassment when a worker was referred to and called a “token Indian” by her manager. The imposition of the labour relations exception creates a high threshold for workers suffering from mental disorders. Its purpose is to bar all but the most egregious actions from giving rise to compensation; again, something not present for other types of compensation.
Recent amendments to the WCA have resulted in greater access to compensation for some mental health claims. However, these amendments have not addressed the impositions placed upon workers seeking compensation for bullying and harassment claims. It remains difficult to obtain compensation for bullying and harassment claims, which is particularly problematic given their close link to mental health concerns.
- bit.ly/bt0619p6-1 | ↩
- bit.ly/bt0619p6-2 | ↩