- Harassment (person in position of authority)
- Stress, mental (chronic)
The worker appealed a decision of the ARO, dated April 28, 2021, which concluded that the worker was not entitled to benefits for a mental stress injury under the WSIB policy for Chronic Mental Stress (CMS), outlined under OPM Document No. 15-03-14.
The Panel denied the appeal.The CMS policy states that workplace harassment occurs when a person or persons, while in the course of employment, engage in a course of vexatious comment or conduct against a worker, which includes bullying, that is known or ought to be reasonably known to be unwelcome. The Panel considered whether the worker suffered from workplace harassment or bullying or whether the supervisor's actions were more consistent with interpersonal conflict or decisions or actions relating to employment.In reviewing the type of incidents outlined by the worker, the Panel noted that none of the incidents involving derogatory remarks were specifically directed against the worker, and therefore, would not constitute workplace harassment under Board policy on CMS, which requires that the conduct be "against a worker." The Panel also found that many of these incidents constituted an employer's decisions or actions that are part of the employment function. The Panel found that it was not unreasonable for the supervisor to assume that in the very least, there was a close working relationship with the worker, noting that the supervisor felt that their relationship was such that he could confide in the worker, and noting that as per an investigation report of May 21, 2019, at no point did the worker express that those exchanges were unwelcome or inappropriate. The Panel acknowledged that the worker may not have wanted to hear the supervisor's complaints about the workload, staffing issues, union/employer issues, or his own stress level pertaining to those issues. However, in the Panel's view, these complaints did not rise to the level of harassment because the comments were not directed against the worker, did not constitute workplace harassment under the Board's CMS policy, and did not involve conduct that a reasonable person would perceive as egregious or abusive. The Panel adopted the definition of "egregious" as set out in Decision No. 133/22 as : "CONSPICUOUS...especially: conspicuously bad: FLAGRANT." In addition, the Panel found that the inappropriate comments regarding a co-worker's sexual orientation and use of profanity did not constitute workplace harassment because the alleged comments and profanity were not against the worker.The Panel found that the text messages provided were more consistent with interpersonal conflict which is a typical feature of normal employment. These texts were sent to the worker's company Blackberry phone, after his work hours, and as such, the worker had the ability not to read the text messages until after he returned from his vacation. The Panel found that it was not inappropriate for the supervisor to send text messages to the worker outside of work hours, noting the worker's testimony that he was "on call 24/7" after he did his regular work hours. The Panel found that the frequency of these texts did not rise to the level of being abusive given that these brief texts were sent over the course of a few hours in one evening.