Highlights of Noteworthy Decisions

Decision 831 21
13/09/2022
M. Crystal - D. Thomson - M. Ferrari
  • Harassment (person in position of authority)
  • Stress, mental (chronic)

The worker sought entitlement to benefits for chronic mental stress (CMS). The appeal was denied.

The Panel found that all of the circumstances where the employer met with the worker to address his conduct vis-Ó-vis co-workers, or met with the worker to discuss regular employment issues, such as management of cash receipts or attendance, were carried out by the employer in good faith as part of the employment function, and did not amount to workplace harassment or conduct that a reasonable person would perceive as egregious or abusive. Further, it was concluded that any discipline that was given to the worker was also given in good faith as part of the employment function, and did not amount to harassment or conduct that a reasonable person would perceive as egregious or abusive. In addition, all of the supervisors and members of senior management noted that the employer had an explicit policy of zero tolerance for workplace harassment in their work environment.
In the Panel's view, the central question in this appeal was whether the several incidents described, in which the worker had conflict with his co-workers, should be characterized as "workplace harassment", or alternatively, should be characterized as "interpersonal conflicts". It was noted as apparent that all, or most, "workplace harassment" would amount to "interpersonal conflict", but that not all "interpersonal conflict" rises to the level "workplace harassment" or conduct that would be perceived to be "egregious or abusive". The policy document provides that "workplace harassment occurs when a person or persons, while in the course of the employment, engage in a course of vexatious comment or conduct against a worker, including bullying, that is known or ought reasonably to be known to be unwelcome", but does not provide a more detailed basis for determining whether particular conduct should be recognized as "workplace harassment" or alternatively as "interpersonal conflict". It was concluded that the worker was not subject to "workplace harassment" within the meaning of the policy document, and that the incidents described by the worker were in the nature of "interpersonal conflict", within the meaning of the policy document.
The Panel also considered WCAT Decision No. A2002831, dated March 16, 2021, which was a decision of the British Columbia Workers' Compensation Appeal Tribunal. It was noted that although WCAT Decision No. A2002831 does not provide an analysis of when and whether an interpersonal conflict rises to a level to be recognized as "workplace harassment", as is required in the worker's case, the Panel agreed with two points made in the decision. First, although the Vice-Chair in WCAT Decision No. A2002831 found the conduct of X was "clearly a stressor to the worker" and recognized that "the worker may have felt it was [abusive]", the subjective opinion of the worker on the question of whether conduct was abusive (or in the case of the worker in this appeal, whether the conduct was "workplace harassment") will not be determinative of entitlement to benefits, and an objective standard must be applied. Second, the Panel agreed that "behavioural perfection" in the workplace is not an achievable standard, and that behaviour in the workplace which falls well short of "perfection" will not necessarily amount to abusive or harassing behaviour.
Another factor which prompted the Panel to conclude that the incidents reflected "interpersonal conflict" rather than "workplace harassment" was the finding that, apart from the question of who was the initiator of any of the incidents, the worker was an active participant in the incidents. The Panel also found that the incidents were probably reactions by one party or the other to previous behaviour, rather than spontaneous aggressive acts by either party. The Panel concluded that where conflict arises in this manner, in most cases, it does not reflect harassment, and in this case, it did not reflect harassment.
Accordingly, the Panel found that the worker was not subject to "workplace harassment" within the meaning of the policy document, including "conduct that a reasonable person would perceive as egregious or abusive." It was found that there was no entitlement for CMS arising from the actions of the employer or its supervisors or senior management team, given the portion of the policy document which provides that "there is no entitlement for chronic mental stress caused by an employer's decisions or actions that are part of the employment functionů" and given the Panel's finding that they acted in good faith carrying out their management functions. The Panel found that there was no other basis upon which to conclude that the worker's psychological injury was "caused by a substantial work-related stressor arising out of and in the course of the worker's employment" within the meaning of the applicable policy document.