Is it work-related? Novel workers’ compensation decisions deal with harassment and assault #learnthelatest

May 17, 2017 Stringer LLP Conferences, Health and Safety, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Source Deductions and Reporting, Union Relations, Wages and Compensation

It may seem fairly obvious when a worker breaks her leg “in the course of employment”. However, injuries and illnesses related to bullying and harassment have drawn significant attention in recent years, and decisions from various workers’ compensation tribunals across the country illustrate that determining the work-relatedness of such injuries is no simple task.

In the anonymized decision 2014-363-AD (Re), the Nova Scotia Workers’ Compensation Appeals Tribunal found that although a worker was sexually assaulted by her boss, the Post-Traumatic Stress Disorder (“PTSD”) that resulted was not compensable as it was not a work-related injury.

In that case, the worker received a call from her new supervisor while at home on her day off, telling her that he was coming over. She did not know him well, and had never interacted with him outside of work. She thought that she must have been in trouble at work. The worker testified that when he arrived, he sexually assaulted her. The worker subsequently filed a report regarding the PTSD that she alleged was caused by the assault. The Tribunal accepted that the worker’s PTSD was a result of the sexual assault.

The Tribunal denied the worker’s claim on the grounds that her injury did not arise “in the course of employment”. The Tribunal found that at the time of the assault, the worker was not doing something for the benefit of the employer, and her supervisor was not acting on the employer’s instruction. The supervisor did not go to her home for an employment-related purpose, despite the fact that she could not think of any other reason for him to come over at the time, and he was wearing his uniform when he arrived.

The Tribunal found that, “It was simply one person going to another person’s home. The fact that they knew each other from work did not create a work-related reason for the visit.”

In coming to its decision, the Tribunal reviewed various decisions from the Ontario Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). In one case, the WSIAT found that a worker’s stress-related disability that resulted from sexual harassment by a supervisor both inside and outside the workplace constituted an injury arising out of and in the course of employment.

In another case, a worker suffered anxiety, depression, and PTSD after being harassed by a co-worker at work, and stalked by him outside of the workplace. The WSIAT in that case, however, found that while some of the events took place at the workplace, the nature of the harassment was related to a pre-existing personal relationship between the two workers, and was not in the control or under the supervision of her employer.

The takeaway

This decision comes in the wake of another novel workplace compensation case from Prince Edward Island. In an unreported decision, the Workers’ Compensation Board of PEI awarded benefits to a widow after her husband’s death was linked to workplace bullying and harassment.

In that case, the worker had been subject to a pattern of bullying and harassment by his supervisor, and eventually died from a heart attack at home after having been off work on leave. Although we do not have the Board’s full reasons, it seems that once pre-existing cardiac conditions were ruled out, the Board had sufficient evidence to find that the harassment caused the heart attack, and that as a result the worker’s death was work-related.

These cases illustrate that workers’ compensation systems across Canada have been dealing with a number of novel issues arising from injuries related to bullying and harassment. The key issue is the work-relatedness of the injury in question; however, as illustrated by the cases reviewed here, that determination is extremely subjective when dealing with issues of bullying and harassment, as opposed to physical accidents and injuries.

Employers should take note of the potential expansion of the types of claims processed by the workers’ compensation regime, and review their policies and procedures accordingly.

To learn more about the legal implications of injuries related to workplace harassment and bullying, register to Learn the Latest® at the Ontario Employment Law Conference.

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Stringer LLP

Employment and Labour lawyers at Stringer LLP

Stringer LLP is a leader in Canadian HR law. For over 50 years, they have taken a client-centered approach to responsive service, representing employers with labour relations and employment problems. Their firm’s practice covers a broad spectrum of HR law, including employment law, occupational health & safety, labour relations and arbitration, human rights, workers’ compensation, pay equity and corporate immigration, as well as issues under the Accessibility for Ontarians with Disabilities Act. They also provide training, seminars and conferences on the above topics. Read more