Bill 14 Update – Bullying & Harassment

**This Bill received Royal Assent on May 31, 2012.

Also see part 1 – “B.C.’s Anti-Bullying Legislation”.

On Monday, May 28, 2012 the B.C. Provincial Government’s Orders of the Day again included the Ministry of Labour moving to amend Bill 14 (Workers Compensation Amendment Act, 2011).  There are important changes from the amendments previously proposed to the Act when Bill 14 was first introduced in the Fall 2011. However, the significance and potential impact on employers from the implementation of Bill 14 still deserves much attention.

Mental disorder: The terminology “mental stress” that is found in the existing language of the Act and the original language of Bill 14 has been changed to “mental disorder”. There is a requirement for the mental disorder to be “diagnosed by a psychiatrist or psychologist as a mental or physical condition that is described in the most recent American Psychiatric Associations’ Diagnostic and Statistical Manual of Mental Disorders”. The new proposed amendment gives Worksafe BC (the “Board”) the right to appoint its own psychiatrist or psychologist to “review a diagnosis” made by the worker’s psychologist in determining whether a worker is entitled to compensation. Employers are quite familiar with receiving questionable medical notes related to both physical and mental health issues from some family physicians. These changes are intended to provide some needed scrutiny and control over compensation claims involving mental disorders which will now be supportable by a worker’s treating psychologist. It is not clear whether the Board’s power to appoint a reviewing psychiatrist/psychologist includes the power to require the worker to submit to an independent medical examination (IME) by the Board’s psychiatrist/psychologist or simply to carry out a documentary review of the treating psychologist’s assessment. It should include the power of an IME because the objective of the review is not accomplished if a medical examination is not possible in questionable circumstances. This is an area that the Board’s policy changes will hopefully address.

Bullying or Harassment: The other key change to Bill 14 is to specifically include the terminology “bullying or harassment” in the Act such that a mental disorder is compensable if it is “predominantly caused by a significant work-related stressor, including bullying and harassment, or a cumulative series of significant work-related stressors, arising out of and in the course of the worker’s employment.” This leaves no doubt as to the major expansion of compensable coverage that will exist for mental illness arising out of events in the workplace that relate to interpersonal behaviour among co-workers, supervisors/managers and others who attend at the worksite.

There is no definition of “bullying or harassment” in the proposed amendments. However, there are widely used definitions of personal harassment and bullying in labour arbitration decisions which in many respects have been adapted from human rights jurisprudence and are often found in policies previously put in place by proactive employers. The B.C. Human Rights Coalition and the BullyFreeBC campaign have been working together lobbying for some time for legislation such as Bill 14. A May 2011 newsletter from the Coalition provides an update on “Anti-Bullying Legislation in Canada” at that time which includes a definition of personal harassment that is consistent with many accepted definitions:

Personal harassment is 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.

There are other components to any determination of whether an event or series of events constitutes personal harassment (see for example, the Coalition’s newsletter). However, this definition demonstrates the wide scope of conduct that is potentially at issue and will have to be addressed by the Board in responding to compensation claims.

Managing employees: One key element of the original section of the Act that will remain in place is that a mental disorder is not compensable if it is “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.” This is part of any complete definition or assessment of whether an event(s) constitutes personal harassment. However, this exception requires that the manager/supervisor’s decision was made for legitimate work-related purposes and not simply disguised harassment.

Compliance: Once passed as law, the provisions of Bill 14 are stated to take effect as of July 1, 2012.  This legislation will present  challenges for many employers. Addressing these challenges should include:

• Ensuring that a policy is in place governing conduct of anyone employed or attending at the worksite that addresses not only human rights based harassment but also personal harassment, bullying and violence in the workplace.
• Training managers and supervisors on how to prevent and respond to harassment of any kind. This includes proactively monitoring the worksite for potential harassment and investigating any potential concerns in a properly documented manner which may require bringing in a third party investigator depending on the seriousness of the allegations or suspected conduct.
• Training all employees on the requirement, as a condition of their employment, to not engage in any form of harassment or be subject to disciplinary consequences.

Bottom line: Addressing personal harassment and bullying in the workplace is squarely in the hands of employers.