Highlights of Noteworthy Decisions

Decision 1857 21
Z. Onen - D. Thomson - C. Salama
  • Harassment (sex)
  • Stress, mental (chronic)

The worker was employed as a personal support worker (PSW). In this appeal the worker claimed entitled for Chronic Mental Stress (CMS) as well as Traumatic Mental Stress (TMS) arising from circumstances which led her to leave work in August 2017.

The worker testified that RC, her manager and a registered nurse harassed her, and that there was a sexual element to her conduct. The worker described RC's behavior, including regularly waiting for her to arrive in the parking lot for her shift at 7 p.m., asking to sit with her in her truck on breaks, touching her on the neck and shoulders, commenting on how she looked in her uniform and commenting on her body and sexual orientation. RC's behaviour included interrupting the worker during her work tasks such as when she was preparing residents' charts, often approaching her from behind. The worker stated RC approached her in this manner at least once a shift and she worked with RC on at least four shifts a week.
The worker testified that she told RC on more than one occasion that the behaviour upset her. RC reacted by laughing and sometimes apologized, but the conduct continued. The worker testified that she felt she was being stalked and the behaviour left her feeling sick. She was nauseous, she lost her appetite and she had difficulty sleeping. To avoid RC she started to park in a different more distant lot. She was constantly looking over her shoulder when at work.
The worker testified that after she moved to a new post she no longer had regular contact with RC, however she faced a new stressor. She was assigned to work with DP, a PSW who was on modified duties. She worked with DP at least three times a week. The worker testified that DP had regular angry outbursts that included swearing and shouting, at times shaking with rage. The worker testified that she was never physically attacked by DP but she feared it.
The Panel found that the worker was harassed by her supervisor RC and that the conduct met the definition of harassment under the CMS policy.
The CMS policy states that interpersonal conflicts between co-workers, supervisors and clients are typical in many workplaces and these are not generally considered to be a substantial stressor unless they amount to workplace harassment, or consist of egregious or abusive conduct. In this case, however, DP's conduct was well outside the norms of interaction even in the context of interpersonal conflict in a workplace, and it was a substantial workplace stressor. The conduct included excessive anger, and physically acting out frustration. It was unpredictable, aggressive and disruptive. The effect of the conduct was exacerbated by the fact that on the night shift, fewer staff was present, so that the worker worked alone with DP at times.
The worker raised other safety concerns with her employer such as: finding a man sleeping in a common area who did not belong in the building; finding another man sitting between bins outside; concerns about black bears near the parking lot; lack of attention to fire prevention protocols by supervisors. The Panel found, however, that these incidents may well have merited management's attention and could be the subject of a complaint, however, they were not atypical of concerns experienced by many workers in the workplace, and any stress caused by them was not excessive in intensity or duration for workers in similar circumstances as defined by the CMS policy.
The Panel found, therefore, that the worker was subjected to two substantial workplace stressors as a result of workplace harassment by RC and abusive and egregious conduct by DP during a period of time from her transfer to the night shift in the spring of 2016 until she stopped working on August 14, 2017. The Panel also accepted that there was a DSM diagnosis provided by a psychiatrist as well as the worker's family doctor, and that the predominant cause of the worker's mental stress injury was her exposure to harassment by RC and later abusive and vexatious conduct by DP.
With respect to the claim for TMS, the Panel found that, on the whole, the nature of the stressors the worker identified in her appeal were more consistent with those described under the CMS policy rather than the types of trauma described by the TMS policy. The claim for TMS was therefore denied.
The appeal was allowed in part.