B.C.’s Workplace Anti-Bullying Legislation?

Also see part 2 – Personal Harassment & Bullying update

I apologize for the lengthy break.  During this time my friend and in-house lawyer, Ms. M, suggested that I post something about Bill 14 - the Workers’ Compensation Amendment Act.  Last week on Pink Shirt day the Vancouver Sun ran an article by business reporter, Darah Hansen (aka “goldenkid1”), that also prompted me to address my writer’s block and start posting again.

The Vancouver Sun article is about a private-member’s bill first introduced by a NDP Member of the Legislative Assembly (B.C.) in the Spring of 2011 and then again in the Fall.  Bill M 212 is titled the “Workplace Bullying Prevention Act” and targets the reduction and elimination of workplace bullying by modifying the Workers’ Compensation Act in B.C.  Bill M 212 proposes adding a very broad definition of harassment into the Act.  Given that it is a private-member’s bill by the opposition NDP, it may not get very far.

However, Bill M 212 must be distinguished from Bill 14 that was introduced by the governing Liberal party in the Fall Session.  It also includes a very significant broadening of compensable injuries under the existing “mental stress” provisions of the Act.  Unless mental stress is related to a physical injury suffered in the workplace, the current Act only compensates for mental stress that is “an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of the worker’s employment”.  For example, a bank teller who suffers from post-traumatic stress disorder following an armed robbery would normally be entitled to compensation for mental stress.

Bill 14 eliminates the requirement that the mental stress be an acute reaction to an event and makes mental stress compensable if it arises from “a significant work-related stressor, or a cumulative series of significant work-related stressors.”

I absolutely applaud efforts to stamp out bullying in schools and workplaces.  I was providing respectful workplace training at a worksite on Pink Shirt day.  However, the proposed changes in B.C. under Bill 14 are the broadest in the country.  The only constraints in the legislation itself are that: (1) the conduct is not compensable if it is caused by legitimate exercise of managerial or supervisory authority including discipline or termination of employment; and (2) mental stress must be diagnosed pursuant to accepted psychiatric standards by a physician or psychologist.  There will be legitimate claims for compensation due to mental stress suffered in the context of bullying in the workplace, and amended legislation should  act as a deterrent to bad behaviour.

I'm not a bully!

However, many employers have very good reason to doubt the credibility of medical notes they frequently receive stating that an employee cannot work due to stress or anxiety resulting from the workplace.  The current wording of Bill 14 poses a very significant risk of a large rise in mental stress claims from employees unhappy with changes in corporate direction, restructuring or personnel changes because it can be alleged that these claims are about abusive management.  This happens frequently when a new boss arrives motivated and directed to make changes including by making employees accountable where there was previously limited performance management.

Worksafe BC is at risk of becoming the venue for determining what behaviour constitutes legitimate management style and what behaviour constitutes personal harassment in the workplace.  This could be a very time consuming and costly endeavour for an employer funded compensation system.  Bill 14 only made it as far as First Reading in the Fall Session.  Now that the Spring Session has commenced, it is expected that the Bill in some form will be re-introduced by the Liberal government.    Due to efforts from groups such as the Employers’ Forum, which is the “voice for employers in BC on all matters relating to health and safety”, the Bill’s scope may be narrowed.  However, it is likely that much of the gray area in the legislation will be left to Worksafe BC to address through its labyrinth of policies and procedures.  It will attempt to do so, but ultimately, the decision-making bodies under the Act must make decisions consistent with the language of the Act as amended.

Bottom-line:  This is an evolving issue.  It is clear that across Canada occupational health & safety legislation is moving toward addressing personal harassment and bullying in the workplace.  Employers who do not have policies and procedures in place to address personal harassment put their employees and their organizations at risk.