Downsizing & Severance Pay Issues
DO YOU FIT THE BILL?
OBLIGATIONS IN THE WORKPLACE
POST-BILL 14
June 2013
Marino Sveinson
Labour & Employment Group
3000 Royal Centre . PO Box 11130
1055 West Georgia Street
Vancouver . BC . Canada . V6E 3R3
Phone 604.687.6575 . Fax 604.641.4949 www.bht.com
TABLE OF CONTENTS
(A) Traumatic Event and Significant Stressors (not bullying and harassment) .....................11
Occupational Health and Safety Workplace Bullying & Harassment Policies ....................20
Do you fit the Bill?
1
Obligations in the Workplace post-Bill 14
Marino Sveinson
Direct Line 604.641.4907 - Direct Fax 604.646.2591
BACKGROUND TO BILL 14: WHAT LED TO THE CHANGE? I.
(A) Section 5.1 Mental Stress (old law)
Under the Workers Compensation Act (the “Act”), “mental stress” [formerly] or mental disorder
[now] claims have traditionally been compensable if the mental disorder resulted from a personal (physical) injury or occupational disease for which the worker is otherwise entitled to compensation under Section 5 of the Act. The focus of this paper is on stand-alone mental disorders that are not tied to a physical injury.
Effective June 30, 2002, the Act provided compensation in very limited circumstances for standalone “mental stress” claims under section 5.1(1) of the Act. A worker was only entitled to compensation if the mental stress was an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of the worker's employment. In addition, the condition had to be diagnosed by a physician or a psychologist and described in the DSM-IV.
2 Finally, the condition could not be caused by a decision of the worker's employer relating to the worker's employment (the ‘labour relations’ exception).
This meant that there was a very restrictive entitlement to compensation for standalone “mental stress” claims. “Gradual onset stress” or “chronic stress” was not compensable. This has also
1 This paper has been adapted from a Continuing Legal Education paper co-authored by the writer of this paper (Marino Sveinson), Jennifer Roper of Roper Greyell LLP and Peter Eastwood of Hamilton Howell
Bain & Gould, titled, Mental Disorder Claims: The Bill 14 Amendments to the Workers Compensation Act and Related Issues , (May 2013)
2 The American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders is a guidebook used to diagnose and classify mental disorders.
- 2 - traditionally been the approach in most jurisdictions in Canada and other common law jurisdictions.
(B) Charter Challenge to s. 5.1
In 2009 the B.C. Court of Appeal considered a worker’s challenge to the former section 5.1 of the Act in Plesner v. British Columbia Hydro and Power Authority .
3
At the Court of Appeal Mr. Plesner focused on a Charter argument. In his submission, section
5.1 of the Act , when read together with WorkSafeBC’s Claims Policy 13.30, violated his equality rights under section 15(1) of the Charter .
B.C. Court of Appeal Majority Judgment
The majority of the Court held that the “traumatic event” descriptor under section 5.1 of the Act, when read in conjunction with Policy 13.30
, breached section 15(1) of the Charter because it gave rise to substantive discrimination on the basis of mental disability.
According to the majority, when compared to workers suffering from physical disability, workers similarly situated to Mr. Plesner were at a significant disadvantage in terms of entitlement to compensation. In the majority’s view, while workers suffering from physical disability only have to show they suffered a work-related injury in order to receive compensation, workers suffering from mental stress had to get over the additional hurdle of showing that the work-related injury was caused by a traumatic event, which Policy 13.30 qualified to be an event akin to
“horrifying.”
The majority held that the breach of section 15(1) could not be saved under section 1 of the
Charter
. In terms of remedy, the majority allowed Mr. Plesner’s appeal and remitted the matter to WCAT for rehearing. Most significantly the Court struck out the portions of Policy 13.30 that it considered contrary to s. 15 of the Charter and left it to WorkSafeBC to revisit Policy 13.30 as a whole, “perhaps in consultation with the Legislature insofar as both s. 5.1(1)(a) and the Policy are inextricably tied, with a view to determining to what extent, if at all, further revisions may be necessary or appropriate.” 4
3 2009 BCCA 188
4 Plesner, supra at para 166.
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WorkSafeBC approved policy changes effective April 30, 2009 to delete the statements from
Policy 13.30 that were severed by the Court of Appeal.
5
Two further challenges to the legislation and policy restrictions were filed with the B.C. Human
Rights Tribunal by the Canadian Union of Public Employees and an individual worker. The
Government reached a settlement with the individual worker and the CUPE complaint was adjourned pending the Ministry of Labour’s review of the legislation, 6 which has now been significantly amended.
However, there may be further challenges to the amended legislation and policy based on the distinction between the “causative significance” test for traumatic events and the “predominant cause” test for significant stressors contained in the amended legislation and claims policy.
II. BILL 14 – AMENDMENTS TO SECTION 5.1
Bill 14, Workers’ Compensation Amendment Act , 2011, was introduced for First Reading by the
Minister of Labour, Citizens’ Services and Open Government, on November 3, 2011. Bill 14 amended section 5.1 of the Act by establishing a broader entitlement for claims for mental disorders.
In preparation for the passing of Bill 14, WorkSafeBC published a draft revised claims policy
( Policy item C3-13.00) in the RSCM on May 31, 2012 and welcomed stakeholder feedback until
June 15, 2012. The revised Policy item C3-13.00 was finalized at the end of June.
The amendments to section 5.1 of the Act came into effect on July 1, 2012 along with the revised Policy item C313.00 (the “Claims Policy”).
It is important to recognize that Bill 14 only concerned compensation for mental disorders. The legislation refers to “bullying and harassment” only in the context of being conduct that could result in a compensable mental disorder claim. However, the legislation is more broadly about
“traumatic events” and “significant stressors.” Bill 14 did not directly establish new occupational health and safety obligations. At the time Bill 14 was passed into law, the Minister also
5 WorkSafeBC BC Discussion Paper: Bill 14
– Mental Disorder Legislation, May 31, 2012. Online at: http://www.WorkSafeBCbc.com/regulation_and_policy/policy_consultation/assets/pdf/Bill14/Bill14MentalDi sorder.pdf (“WorkSafeBC Discussion Paper, May 31, 2012”).
6 Ibid footnote 9, page 3.
- 4 - requested WorkSafeBC to develop prevention policies specific to bullying and harassment (the
“OHS Policies”). These policies were just published by WorkSafeBC in late April 2013 (The
Workers Compensation Board of British Columbia Resolution of the Board of Directors:
2013/03/20-03).
7 They will become effective November 1, 2013.
The workers’ compensation scheme in B.C. is complex, and in order to fully consider benefit entitlement and other legal obligations and rights in respect of claims for mental disorders and occupational health and safety requirements, one must consider the following:
(a) the Act;
(b) the Claims Policy;
(c) Interim Practice Directive #C33 issued January 2, 2013 (the “Interim Practice
Directive”);
(d) the Occupational Health and Safety prevention policies on Workplace Bullying and Harassment pu blished April 2013 (the “OHS Policies”); and
(e) WorkSafeBC administrative and judicial consideration.
(A) The Act
The full text of the amended (current) s. 5.1 is set out below:
Mental disorder
5.1 (1) Subject to subsection (2), a worker is entitled to compensation for a mental disorder that does not result from an injury for which the worker is otherwise entitled to compensation, only if the mental disorder
(a) either
(i) is a reaction to one or more traumatic events arising out of and in the course of the worker's employment, or
7 http://www.worksafebc.com/regulation_and_policy/policy_decision/board_decisions/2013/mar/assets/2013
0320-03.pdf
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(ii) is predominantly caused by a significant work-related stressor, including bullying or harassment, or a cumulative series of significant work-related stressors, arising out of and in the course of the worker's employment,
(b) is diagnosed by a psychiatrist or psychologist as a mental or physical condition that is described in the most recent American Psychiatric
Association’s Diagnostic and Statistical Manual of Mental Disorders at the time of the diagnosis, and
(c) is not 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.
(2) The Board may require that a psychiatrist or psychologist appointed by the
Board review a diagnosis made for the purposes of subsection (1) (b) and may consider that review in determining whether a worker is entitled to compensation for a mental disorder.
(3) Section 56 (1) applies to a psychiatrist or psychologist who makes a diagnosis referred to in this section.
(4) In this section:
" psychiatrist " means a physician who is recognized by the College of
Physicians and Surgeons of British Columbia, or another accredited body recognized by the Board, as being a specialist in psychiatry;
" psychologist " means a person who is registered as a member of the
College of Psychologists of British Columbia established under section 15
(1) of the Health Professions Act or a person who is entitled to practise as a psychologist under the laws of another province.
There are three main changes. (1) The term “mental stress” found in the old legislation is replaced with “mental disorder”. This is not a change in substance as the previous legislation also required a DSM diagnosis. However, it is more appropriate terminology as “stress” is not a generally accepted medical-legal diagnosis. (2 ) All references to “physician” have been
- 6 - replaced with “psychiatrist” meaning that only a registered psychologist or psychologist can make the diagnosis of a mental disorder. A family physician can no longer make the diagnosis.
(3) In order to be compensable, a worker will now have to demonstrate that his or her mental disorder is a reaction to:
(i) one or more traumatic events arising out of and in the course of the worker's employment; or
(ii) a significant work-related stressor, or a cumulative series of significant workrelated stressors, arising out of and in the course of the worker's employment.
Therefore, compensable claims for mental distress have broadened in two significant respects.
1. Previously a worker was required to demonstrate that the mental stress was the result of
"an acute reaction to a sudden and unexpected traumatic event" arising out of and in the course of the worker's employment. Under the revised legislation a worker must only demonstrate that he suffers from a mental disorder that is a reaction to one or a combination of traumatic events.
2. A new category of compensable claims has been created. If a worker can demonstrate that his or her mental disorder is a reaction to a significant work-related stressor, or a cumulative series of significant work-related stressors, arising out of and in the course of the worker's employment, the worker may be entitled to compensation.
Some provisions remain unchanged, including the requirement for a DSM diagnosis,
WorkSafeBC’s ability to review the diagnosis, and the exclusion of mental disorders caused by the decisions of t he employer relating to the worker’s employment.
The DSM in use is the DSM-IV. It is important to note that the DSM-5 is expected to be released in May 2013 and will replace the current DSM-IV. The American Psychiatric
Association published a news release on December 1, 2012 outlining some of the approved changes to the DSM-5.
8 Overall changes include the restructuring of the chapters and the removal of the multiaxial system. Several new disorders will be added to the DSM-5 including
Excoriation (skin-picking) disorder and Hoarding disorder. A new Substance Use Disorder will combine the DSM-IV categories of substance abuse and substance dependence.
8 American Psychiatric Association Board of Trustees Approves DSM-5, December 1, 2012 News Release. Online at: www.psychiatry.org.
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Section 5.1(b) of the Act requires that a mental disorder be diagnosed using the most recent
DSM at the time of diagnosis. Therefore, the DSM-5 will not apply to claims already in the system, but must apply to any diagnosis made following its release in 2013.
(B) The Claims Policy
The Claims Policy, like all WorkSafeBC policies, is used by Board staff in carrying out their responsibilities under the Act. Specifically, the Claims Policy sets out the decision –making principles for determining a worker’s entitlement to compensation under section 5.1 of the Act and is relied upon by claims officers, the Review Division, and WCAT in rendering their decisions. The Claims Policy should be read in its entirety as if it was the governing legislation itself.
The following is a synopsis of key issues addressed in the Claims Policy.
Diagnosis
In order to receive compensation, a worker must first establish that he or she suffers from a mental disorder diagnosed pursuant to the most recent DSM at the time of diagnosis by a psychologist registered as a member of the College of Psychologists of B.C. or a psychiatrist (a physician recognized by the College of Physicians and Surgeons of B.C. as a “specialist in psychiatry”).
WorkSafeBC is responsible for determining whether this criteria has been met and in doing so, will consider all relevant medical evidence including prior medical history, attending physician reports and expert medical opinion.
Definitions
The Claims Policy identifies that a “traumatic” event is an emotionally shocking event, which is generally unusual and distin ct from the duties and interpersonal relations of a worker’s employment. “Significant work-related stressors” must be excessive in intensity and/or duration from what is experienced in the normal pressures or tensions of a worker’s employment. This establishes an examination in each workplace of the normal duties and stressors of the position of the worker making the claim. The Board may consider an event to be traumatic in one workplace and position but not another. Similarly, the Board may consider a stressor to be significant in one workplace and position but not another.
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The Board will consider the subjective perceptions of the claimant and will also require objective verification that such events or stressors are specifically identifiable. This means that thorough investigations by employers at the time of incidents are of critical importance.
Causation – “arising out of and in the course of employment”
“In the course of employment” as it relates to both traumatic events and significant stressors means, like physical injuries, that the incident(s) must have occurred at a time, place and during an activity that is consistent with, and reasonably incidental to, the obligations and expectations of the worker’s employment.
“Arising Out of … employment” relates to the cause of the mental disorder. Both employment and non-employment factors may contribute to the mental disorder including non-occupational injuries and personal stressors. WorkSafeBC must determine whether any pre-existing nonwork related medical conditions or non-work related events were factors in the mental disorder and ultimately whether there is a sufficient causal connection between the mental disorder and the traumatic event(s) or significant stressor(s).
With respect to traumatic events, the claimant must establish that the event(s) was of sufficient degree or duration to be of causative significance to the mental disorder. This means that the traumatic event(s) must be more than a trivial or insignificant cause of the mental disorder.
With respect to significant stressor(s), the “out of … employment” or causation element requires a determination of whether the significant work-related stressor was the predominant cause of the mental disorder. “Predominant cause” means that the significant work-related stressors are the primary or main cause of the mental disorder. Neither the Act nor the Claims Policy defines the predominant cause test in terms of a specific percentage of work causation versus non-work related causes. For example, do the work-related causes have to be the majority (51%) of the cause of the mental disorder? As will be discussed below, the Interim Practice Directive provides some further guidance in this respect, but the applicability of the predominant cause test to any given circumstance will evolve through the actual decisions.
Exclusions
The statutory exclusion is that mental disorders caused by a decision of the worker’s employer relating to the worker’s employment are not compensable. The Claims Policy describes the
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•
•
•
•
•
•
•
• application of this exclusion in further detail by providing a non-exhaustive list of examples of the type of decisions that would fall within this exclusion:
Decisions of the employer relating to workload and deadlines
Work evaluation
Performance management
Transfers
Changes in job duties
Layoffs
Demotions
Reorganizations
In addition, the Claims Policy clearly states that interpersonal conflicts between a worker and her supervisors, co-workers, or customers will generally not be considered a significant stressor(s) unless the conflict results in behavior that is threatening or abusive.
(C) The Interim Practice Directive
Practice Directives are issued by the Compensation Practice and Quality Department and developed in consultation with subject matter experts within the Worker and Employer Services
Division to address specific compensation matters. The Review Division and the Policy and
Regulation Division of WorkSafeBC may also provide advice and comment in the development of practice directives.
Practice Directives highlight key considerations for adjudicators and WorkSafeBC officers are required to apply the guidance provided in the Practice Directives.
9
WorkSafeBC issued an Interim Practice Directive for Mental Disorder Claims on January 2,
2013.
10 The Practice Directive supplements the legislation and Claims Policy by providing further detail and examples of claims that may or may not be accepted.
9 WorkSafeBC Compensation Practice and Quality Department Practice Directives, online at: http://www.WorkSafeBCbc.com/regulation_and_policy/practice_directives/compensation_practices/practice_directi ves/default.asp
10 Interim Practice Directive, online at: http://www.WorkSafeBCbc.com/regulation_and_policy/practice_directives/compensation_practices/assets/pdf/C3-
3.pdf.
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•
•
•
•
WorkSafeBC established the following important principles in the Practice Directive, which might not otherwise have been clear in the Act or Claims Policy:
• A single incident may result in a worker establishing a claim under section 5.1.
• In all cases, the Board should consider a worker’s entitlement under both the traumatic event and significant stressor provisions of the Act.
A “traumatic event” must be determined based upon the specific facts.
The Claims Policy does not define “emotionally shocking” or “traumatic”. The Practice
Directive sets out dictionary definitions of these terms.
Employment in a high stress occupation is not a bar to compensation under section 5.1.
Compensation may be provided even if the worker had tolerated a similar traumatic event in the past.
• The traumatic event must have actually occurred and an anticipated event will not qualify as a traumatic event.
• In general terms, bullying and harassment reflect a pattern of behaviour that is intended to, or should reasonably have been known would, intimidate, humiliate or degrade an individual.
• A single event of bullying or harassment may be more appropriately adjudicated as a traumatic event, rather than a single work-related stressor, depending on the nature of the event.
• In assessing whether work-related stressors were the predominant cause, WorkSafeBC will consider other non-work related stressors in causing the mental disorder.
• Work-related stressors need not be the sole cause nor must they outweigh all other stressors combined in order to be the predominant cause.
III. WORKSAFEBC COMPENSATION CLAIMS DECISIONS TO DATE
Based on an informal count from July 1, 2012 to April 2013, there have been approximately 147
Review Board decisions considering compensation for section 5.1 mental disorder claims. Of these decisions, 19 were accepted for compensation and 11 were returned to the Board with
- 11 - directions. In addition, there have been approximately 17 decisions since July 1, 2012 that have involved compensation fo r section 5.1 claims at the Workers’ Compensation Appeal Tribunal
(“WCAT”). Of these WCAT decisions, eight were accepted for compensation and two were returned to the Review Board for reconsideration.
(A) Traumatic Event and Significant Stressors (not bullying and harassment)
We have attempted to provide a focused review of some of the decisions that provide guidance with respect to how the Review Division and the WCAT will interpret what constitutes a
“traumatic event” or “significant stressor.”
WorkSafeBC will very closely examine the actual duties of the worker, the nature of the workplace, the worker’s emotional reaction to the incident(s), and the normal or usual events that occur at the workplace as asserted by the worker and the employer in order to determine whether a traumatic event has taken place. This determination will very much depend on the specific circumstances of the workplace including similar historical events, the worker’s reaction to past events, and the nature and past conduct of the e mployers’ employees, clients, customers or patients.
In Review Reference #R0135592 , the worker was a registered nurse at a residential care facility. The worker claimed to have developed a mental disorder as a result of a work incident where a palliative care patient threatened physical harm using a pen and an umbrella before being restrained with injections.
The review officer determined that the incident was an emotionally shocking event based in part on the fact that the patient had already struck a co-worker, the patient had a pen and umbrella and it took several workers to take the umbrella away, and the incident contained elements of personal danger or threats such that the worker felt as though her personal safety was in jeopardy.
While it was part o f the worker’s job to deal with patients in crisis, the review officer held that the kind of violence displayed by the patient was unusual and distinct from the duties of the worker’s employment such that it constituted a traumatic event.
That decision is to be contrasted with two earlier decisions involving care aide workers where compensation claims were denied. In Review Reference #R0137248 a senior resident at the care facility inappropriately touched the worker in the groin area. WorkSafeBC held that the
- 12 - worker had not experienced a traumatic event or significant stressor as it would not be unusual in the setting of a care facility where some patients suffer from dementia for such incidents as this to occur. Further, this patient had a known history of inappropriate behaviour and the worker had in fact previously observed the same patient to have inappropriately touched a coworker’s buttocks. The review officer denied the claim concluding that given the worker’s long service with the employer, she was likely accustomed to patients who did not have normal cognitive capacity or behavioural insight.
A similar claim involving a dementia patient who scratched, spit and kicked a care aide was denied on the basis that while it might have been unpleasant and upsetting to be spit on, it was not an “emotionally shocking event in that it was not an ‘extremely’ startling, distressing or offensive event”. WorkSafeBC also concluded that the worker had not experienced a significant work-related stressor as it was not uncommon for patients to become aggressive and this particular patient had been aggressive in the past (Review Reference R0145085) .
The worker in Review Reference #R0144457 was a sawmill labourer. He claimed compensation for mental disorder (anxiety, insomnia) resulting from an incident at work when a saw blade blew up near him. The teeth from the blade saw went flying and some became embedded in the glass of the booth in which the worker was sitting. If not for the glass, the worker would have been killed. The Employer took the position that blade saw malfunctionrs were a regular occurrence and were part of the worker’s employment. Since 2009, the saw mill had experienced 6 to 8 saw explosions and that was why the worker worked in a plexi-glass booth.
The review officer weighed evidence and found that the incident was traumatic and not common. While there had been prior incidents, this incident had the added factor of the saw teeth flying into the plexi-glass window. WorkSafeBC found it reasonable that the worker found this to be emotionally shocking.
A first responder’s claim under section 5.1 was denied on the basis that the incident was not unusual or distinct from the worker’s regular duties (Review Reference #R0141247) . A close relative of the worker had died of a cardiac arrest. The worker then developed a mental disorder after two patients died of a cardiac arrest. WorkSafeBC held that the event was not traumatic because the incidents were not unusual or distinct from the worker’s regular duties.
Similarly, the events were not significant stressors because they were a normal part of the worker’s employment.
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In this case, the worker’s personal circumstances and subjective feelings or beliefs did not impact review officer’s decision. This is consistent with other cases in which WorkSafeBC has held that a decision as to whether the mental disorder is a reaction to one or more traumatic events or is predominantly caused by significant work-related stressors will not be made solely on the basis of the worker’s subjective beliefs (see for example, Review Reference
#R0136042).
In WCAT-2012-02707 a nurse applied for compensation as a result of his inability to work due to anxiety after learning that he had given the wrong chemotherapy treatment to a patient. The error could have had life-threatening consequences to the patient, but fortunately did not.
The Vice Chair noted that the worker’s reaction was not to a hypothetical situation (the possibility of harm to the patient), but was a reaction to an event which actually occurred (the mistaken treatment). The event was “traumatic subjectively to the worker”. The Tribunal allowed the worker’s appeal finding that the event was unusual and distinct from the worker’s duties in the sense that it involved an error: the type of error that the worker was trained and expected to avoid. The Tribunal concluded that “as a potentially life –threatening error”, being the person responsible for it and hearing the news “would be emotionally shocking and th erefore traumatic”.
This decision arguably varies from the Review Division’s interpretation and application of the Act and Policy . First, the worker’s subjective response governed in the WCAT decision, whereas the Review Division has held in various decisions that subjective beliefs will not be enough.
Second, the event (the mistake in medication) was something for which the worker was trained and arguably was inherent to the duties he performed.
Proof of causation
In order to qualify for compensation, any work-related significant stressor(s) must be the predominant cause of the mental disorder. The Review Division has held that this means that the stressors must be the “primary” or the “main” cause of the mental disorder. In Review
Reference #R0154349 , the review officer considered the psychologist’s notes which outlined that the worker’s PTSD was as a result of the overwhelming work conditions. The notes did not support that the mental disorder was attributable to any non-work related factors and so the
“predominant cause” test was met.
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WCAT-2013-00858 is a case where compensation was denied on the basis that the event did not arise out of the course of employment and the event was also determined not to be a traumatic event. The worker became aware of an altercation behind her place of work and saw two men engaged in a fight. When she later left work, she saw a pool of blood and subsequently heard a rumour that one of the men had died as a result of the fight. The worker was diagnosed with mixed anxiety and depressed mood.
The Tribunal considered whether the worker’s employment was of causative significance to the occurrence of the injury. The employment has to be “more than a trivial or insignificant aspect of the injury.” In this case, the worker’s employment was not of causative significance because the worker only witnessed the altercation due to the proximity to her place of employment. The events did not arise out of the worker’s employment, the men involved in the fight did not have any connection to the workplace, and the worker was not in danger.
The worker’s representative argued that the two men could have come on to the work premises and posed a safety threat. The Tribunal found that this was speculative and did not actually happen.
The Tribunal stated that witnessing of a fight between two men with no connection to the workplace or the worker is not a profound and sudden disturbance of the physical or mental senses or a sudden and violent physical or mental impression. While seeing blood may have been emotionally shocking to the worker, it had no relation to the workplace and the worker could have been exposed to blood at any other location where a fight or injury took place. The news of a death was not confirmed and the Tribunal concluded that such news was not shocking since the worker had no connection to the man possibly involved.
(B) Bullying and Harassment
Despite the pr ovincial government and media’s focus on bullying & harassment when Bill 14 was introduced, the Bill did not contain a definition of either term. WorkSafeBC also did not provide a definition(s) in the Claims Policy. Rather, it was left to the Board’s officers and adjudicators to apply definitions from various other sources.
However, the Claims Policy does state what is not bullying and harassment:
All workers are exposed to normal pressures and tensions at work which are associated with the duties and i nterpersonal relations connected with the worker’s employment.
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A workrelated stressor is considered “significant” when it exceeds the intensity and/or duration expected from the normal pressures or tensions of the worker’s employment.
Interpersonal conflicts between the worker and his or her co-workers or customers are not generally considered significant unless the conflict results in behaviour that is considered threatening or abusive.
Examples of significant work-related stressors may include exposure to workplace bullying and harassment.
Further guidance is also provided in the Interim Practice Directive for Mental Disorder Claims, as noted above:
… The Act and policy do not define bullying, harassment, threatening or abusive. In general terms, both bullying and harassment reflect a pattern of behaviour that is intended to, or should reasonably have been known would, intimidate, humiliate or degrade an individual.
Although bullying and harassment are generally considered in terms of a pattern of ongoing behaviour, this does not preclude acceptance of a claim for a mental disorder based upon a single event.
A single event of bullying, such as a threat of physical harm, or a single act of harassment may be more appropriately adjudicated as a traumatic event rather than as a single work-related stressor depending upon the nature of that event.
Not all interpersonal conflict or conduct that is rude or thoughtless will be considered abusive behaviour. Each case will need to be investigated to determine the details and nature of the interpersonal conflict. However, conduct that is determined to be threatening or abusive is a significant work-related stressor.
The interpersonal conflict reported by the worker must have an employment connection for the resulting mental disorder to be compensable. The significant stressor or stressors must have happened at a time and place and during an activity consistent with or reasonably incidental to the duties and obligations of the worker’s employment. For
- 16 - example, a worker who has a mental disorder that is a reaction to conflict with a coworker about a personal matter may not have met the “arising out of” criteria.
11
To date, both the Review Division and the WCAT have applied a variety of definitions (mainly from dictionaries) in determining what is, and what is not, bullying and harassment. However, usually the focus has been on whether the alleged events have been “emotionally shocking” and “unusual” in terms of what is expected from the normal pressures or tensions of a worker’s employment, or whether the conduct would be considered “threatening” or “abusive.” The following are the majority, but not all, of the bullying & harassment cases.
In Review Reference #R0138500 , the Worker claimed stress from the employer increasing her work load, being assigned to work outside her job description, her supervisor denying her a raise and yelling at her during a review. He r physician said the worker was “stressed out”. It was determined that the worker’s claims generally involved decisions of the worker’s employer relating to her employment. Her claims that her supervisor yelled at her could be considered harassment or bullying but the worker was given the chance to provide further evidence/submissions about this incident but did not do so. Her claim was denied.
In Review Reference #R0137863 , the Worker claimed that for the last three years, two of her co-workers wrongly accused her of making mistakes and this amounted to bullying. The
Review Officer stated that for the claim to succeed, the work-related stressor must be either traumatic or considered significant; “significant” requires it to be excessive in intensity and/or duration from what is experienced in the normal pressures and tensions of a worker’s employment. Further, the Claim Policy specifically states “interpersonal conflicts” between workers are not generally considered significant unless they involve threatening or abusive behaviour. Here, the interpersonal conflict did not rise to the level of a “significant” work-related stressor. The co-workers may have been rude and disrespectful to her, but they did not threaten her, use profanity, or raise their voices.
In Review Reference #R0141126 , the Worker was a plumber. He claimed compensation after a series of alleged “bullying and harassment” incidents and one in particular. A group of five coworkers had bullied and harassed him in various ways including: pouring WD-40 into his water bottle, spraying WD-40 on an apple of his, burning his desk with a propane torch, and drawing
11 Interim Practice Directive for Mental Disorder claims, supra note 13
- 17 - vulgar pictures on his desk. The culminating incident occurred when he was bent over to plunge a toilet and a co-worker came up behind the worker and blew an air horn 2.5 feet from his right ear, causing him to fall backwards and affecting his hearing and balance.
The initial decision was denied under the old legislation. However, the Review Officer considered the series of events described by the worker and found that the events are clearly distinct from and beyond the realm of the worker’s duties as a plumber. The claim would succeed as being a “series of significant stressors” as well as a “traumatic event” (the blow horn incident).
In Review Reference #R0150498 , a single bullying incident was accepted as a traumatic event.
A bus driver got into an altercation with another bus driver in the bus depot parking lot. The altercation was over the way in which the worker parked his bus. In determining the event was traumatic, the review officer stated:
In my view, the events of June 14, 2012 were a traumatic event. The confrontation was unexpected in that the worker had no warning. Furthermore, the worker states that he believed that he was in danger of being physically assaulted. The combination of P’s actions - walking up very close to the worker, shouting, being visibly angry, and waving a finger in his face - suggest that there was a real threat that the confrontation could escalate into physical violence, even if there was no express verbal threat. Consequently, I accept that the worker did fear a physical confrontation. Finally, I note that P used a racial slur as the worker was walking away.
Taken together, these events are emotionally shocking.
This confrontation was also unusual and distinct from the duties and interpersonal relations of a worker’s employment. All workplaces have interpersonal conflicts and some of these conflicts can become heated. Unfortunately, sometimes racial slurs are used. However, what differentiates the events of June 14, 2012 from usual workplace conflicts is the worker’s fear of physical confrontation. If the worker had not turned and walked away, I believe it is very possible that violence would have resulted. Having this fear from a workplace confrontation must be unusual and is distinct from the worker’s duties as a bus driver.
In Review Reference #R01462238 , the Worker claimed she was being bullied at work because of:
• Co-workers speaking to her in a disrespectful manner
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•
•
•
Co-workers rolling their eyes when speaking to the worker
Lack of respect; lots of gossip; hurtful words
Co-workers becoming silent when she would enter the room; glare at her; ignore her.
The Review officer found that the events were all interpersonal conflicts with co-workers and none of the incidents rose to the level of a significant work related stressor because they were not abusive or threatening. It was important that many of worker’s beliefs seemed to be based on speculation and suspicion.
The Review officer stated that most of the events alleged involve normal stressors in the workplace because it is unusual for everyone in a workplace to get along and these types of tensions are not considered significant unless the evidence suggests there is abuse or threats occurring.
Other events alleged involved decisions of the employer relating to the worker’s employment such as workload and deadlines, etc. which are not compensable.
In Review Reference #R0148311 , the Worker was a nurse in a correctional setting. She reported being the victim of harassment from her manager for 3 months. The Review Officer used definitions of bullying and harassment from the Merriam Webster dictionary and the Oxford dictionary. The Officer stated that the law and policy were “not intended to capture every workplace conflict or interaction that a worker may find to be unpleasant”. The worker’s evidence did not persuade the Review Officer that she was subjected to bullying and harassment behaviour that was threatening or abusive.
However, in Review Reference #R0134012 , the single incident bullying allegation was accepted as clearly being traumatic. The Worker suffered from psychological condition after a co-worker commented that she was a “f***ing cow” and that he intended to throw the worker out of her work truck and run her over. The Worker had a panic attack shortly after.
In WCAT-2013-00675
, a corrections officer was unexpectedly berated and “dressed down” by a supervisor after a series of stressful work issues, resulting in several psychological injuries. The supervisor had yelled at the worker, called the worker the “God damn problem” and was verbally abusive to her while making several false allegations. When the worker tried to explain herself, the supervisor snapped back, “Talk to the hand” and did not give her the chance to speak.
WCAT determined that the incident constituted a traumatic event:
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The dressing down was a single incident of aggressive assertion of power through intimidation, humiliation, offensive language, and blaming. It might not have been intended to cause harm, but it had a clear and demonstrably negative effect on the worker and would reasonably have been known or expected to be offensive or humiliating. That is, it was a most unusual event that amounted to personal harassment, and the worker quite reasonably experienced it as shocking.
A workrelated stressor is considered “significant” when it is excessive in intensity and/or duration from what is experienced in the normal pressures or tensions of a worker’s employment. Interpersonal conflicts between the worker and his or her supervisors, coworkers or customers, are not generally considered significant unless the conflict results in behaviour that is considered threatening or abusive. I am satisfied that in this case the supervisor expressed the interpersonal conflict, of which the worker was unaware, through shockingly rude, abusive/aggressive behaviour.
This harassment/abuse/aggression occurred in the course of employment.
The Act excludes from eligibility for compensation those psychological disabilities 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, and policy further mentions decisions of the employer relating to workload and deadlines, work evaluation, performance management, transfers, changes in job duties, lay-offs, demotions and reorganizations. What these examples have in common is that they relate to the contract of employment, rather than the employment itself; they do not arise out of the employment, but rather, out of the employment contract.
The supervisor’s dressing down of the worker appears to have occurred as a result of the worker’s efforts to communicate ideas she had about improving work organization.
However, the supervisor did not, in the dressing down, communicate any decisions about the organization or the work or any other term of the employment contract; rather, she berated the worker for wanting to get her ideas across, undermined her ideas, told her she was the problem, and in doing so used “ugly” language. The worker felt abused.
She was trying to do her job in the most effective way possible, and seemingly out of the blue, was subjected to the aggressive/abusive dressing down. I am satisfied the
- 20 - dressing down was a significant work-related stressor, in the nature of harassment, and that it arose out of the employment.
IV. OCCUPATIONAL HEALTH AND SAFETY WORKPLACE BULLYING & HARASSMENT
POLICIES
As stated above, the new OHS Workplace Bullying and Harassment Prevention Manual Policies were published by WorkSafeBC just prior to the publication of this paper. The Board’s authority to establish three policies arises directly from sections 115, 116 and 117 of the Act that set out the general duties of employers, workers and supervisors respectively. Therefore, three OHS
Policies have been developed that will be included in the Prevention Manual and contain legal obligations for employers, supervisors and workers related to preventing bullying and harassment in the workplace. These are the first of their kind in British Columbia.
12
(A) Definition of Bullying & Harassment
All of the Proposed OHS Policies define “Bullying and Harassment” as follows:
(a) includes any inappropriate conduct or comment by a person towards a worker that the person knew or reasonably ought to have known would cause that worker to be humiliated or intimidated, but
(b) excludes any reasonable action taken by an employer or supervisor relating to the management and direction of workers or the place of employment.
(B) Employer Duties
Reasonable Steps to Address the Hazard
WorkSafeBC considers that reasonable steps by an employer to prevent where possible, or otherwise minimize, workplace bullying and harassment include the following:
(a) developing a policy statement with respect to workplace bullying and harassment not being acceptable or tolerated;
12 Note that the Workplace Conduct Regulations at sections 4.24 to 4.26 previously governed some serious conduct that could be considered bullying & harassment.
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(b) taking steps to prevent where possible, or otherwise minimize, workplace bullying and harassment;
(c) developing and implementing procedures for workers to report incidents or complaints of workplace bullying and harassment including how, when and to whom a worker should report incidents or complaints. Included must be procedures for a worker to report if the employer, supervisor or person acting on behalf of the employer, is the alleged bully and harasser;
(d) developing and implementing procedures for how the employer will deal with incidents or complaints of workplace bullying and harassment including:
(i) how and when investigations will be conducted;
(ii) what will be included in the investigation;
(iii) roles and responsibilities of employers, supervisors, workers and others;
(iv) follow-up to the investigation (description of corrective actions, timeframe, dealing with adverse symptoms, etc.); and
(v) record keeping requirements;
(e) informing workers of the policy statement in (a) and the steps taken in (b);
(f) training supervisors and workers on:
(i) recognizing the potential for bullying and harassment;
(ii) responding to bullying and harassment; and
(iii) procedures for reporting, and how the employer will deal with incidents or complaints of bullying and harassment in (c) and (d) respectively;
(g) annually reviewing (a), (b), (c), and (d);
(h) not engaging in bullying and harassment of workers and supervisors; and
(i) applying and complying with the employer’s policies and procedures on bullying and harassment.
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(C) Worker Duties
A worker’s obligation to take reasonable care to protect the health and safety of themselves or others includes:
(a) not engaging in bullying and harassment of other workers, supervisors, the employer or persons acting on behalf of the employer;
(b) reporting if bullying and harassment is observed or experienced in the workplace; and
(c) applying and complying with the employer’s policies and procedures on bullying and harassment
(D) Supervisor Duties
A supervisor’s obligation to ensure health and safety of workers includes:
(a) not engaging in bullying and harassment of workers, other supervisors, the employer or persons acting on behalf of the employer; and
(b) applying and complying with the employer’s policies and procedures on bullying and harassment.
An employer tool kit is being developed by WorkSafeBC to guide employers with respect to their responsibilities related to the OHS Policies.
V. FEDERAL SECTOR
WorkSafeBC administers compensation claims for employers under federal jurisdiction except to the extent that a federal employer is governed by GECA and the applicable provisions of the
Act are inconsistent with the applicable provisions of GECA. With respect to claims under section 5.1, it has been determined that mental disorder claims for federal government workers are not adjudicated using the revised section 5.1.
13 Private sector federal employers are governed by section 5.1.
13 Review Reference #: R0141288, August 01, 2012; and WCAT Decision Number: WCAT-2012-02615, October
09, 2012.
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The OHS Policies will not apply to Federal Sector employers which are governed by Part III of the Canada Labour Code, (R.S.C., 1985, c.L-2) and authorities thereunder. Pursuant to section
125(z.16) of the Code and Part XX of the Canada Occupational Health and Safety Regulations
(SOR/86-304), specific measures are required to be taken by employers with respect to violence in the workplace. “Work place violence” is defined broadly enough to capture conduct which may be considered bullying and harassment:
20.2 In this Part, “work place violence” constitutes any action, conduct, threat or gesture of a person towards an employee in their work place that can reasonably be expected to cause harm, injury or illness to that employee.
VI. PERSPECTIVES FOR EMPLOYERS
Mental disorders are very complex and may have multiple causes – some of which are work related and some of which are not. A single mental disorder such as a properly diagnosed depressive or anxiety disorder could be caused by a work related incident(s), personal stressors and/or a non-work related accident or injury. A mental disorder could pre-exist the employment relationship or work-related incident. It is also common for persons to suffer from more than one mental disorder – each potentially with its own multitude of causes. It is also significant that virtually everyone encounters “stress” at work on a regular basis.
The complexity of determining the cause(s) of mental disorders that are not otherwise related to a workplace personal injury has historically meant that most common law jurisdictions only provided compensation for diagnosable mental disorders arising from traumatic events in the workplace. Similar to what occurred in some other jurisdictions, in B.C. the judicial system (in effect) forced the provincial government to expand the scope of compensable mental disorder claims under the Act that do not otherwise result from a personal injury.
The key expansion was to make “gradual onset stress” or ”chronic stress” potentially compensable under the “significant stressors” provision. The other major initiative by the provincial government related to Bill 14 was to include bullying and harassment as an express category of significant stressors in the legislation itself and to request WorkSafeBC to address workplace bullying and harassment as an occupational health and safety issue through prevention policies.
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(A) Section 5.1 Claims
The expansion of section 5.1 compensable claims is significant, but it has very important limits that are, for the most part, being interpreted strictly by WorkSafeBC adjudicators. However, there are seemingly inconsistent decisions and some of the latest decisions are alarming: [see for example, Review Reference #R0152845].
Investigations are crucial for employers to determine whether a traumatic event(s) or significant stressors(s) has occurred. Unfortunately, this means that despite that the large majority of the claims are currently being denied, employers will have to expend significant internal resources investigating and responding to claims.
We attempt to bring some insight to employers based on the first ten months or so of claims adjudication under Bill 14.
‘Labour relations exception’ remains your friend
Employers are free to manage their operations and personnel in the manner they choose including with respect to the day-to-day supervision of personnel and human resources management issues. The Board seems to accept that supervisors may even be rude at times or engage in heated discussions with a subordinate without this becoming a compensable significant stressor. On the other hand if a supervisor or manager carries out his or her role in a threatening or abusive manner then a claim will be compensable if the other factors are established. Employers need to minimize bad faith allegations in this respect by trying to have more than one member of management attend at any potentially sensitive meeting with an employee.
In short, to the extent that a circumstance arises within the context of a legitimate exercise of managerial/supervisorial authority or decision-making, employers need to ensure the Board has been provided the information necessary to make the determination that the claim expressly excluded.
“Interpersonal conflict” is your new friend
The Board is drawing a line between behaviour that demonstrates a targeted pattern of harassment by one or more co-workers against another and behaviour that is simply interpersonal conflict between co-workers or between a worker and a supervisor. This is a very important distinction. When faced with specific allegations of incidents that recently occurred at
- 25 - a workplace, an employer may find that a co-worker engaged in behaviour that was intended to annoy and even insult another co-worker. However, the employer may also find if it investigates thoroughly that the incident under complaint is actually part of underlying personal animosity between two co-workers who are both active participants in the conflict. In some cases, the personal animosity initially arose outside the workplace. In others it may have arisen out of personality difference, competition and/or a lack of respect for the abilities of the other in the performance of duties. A claim based on bullying and harassment will not be compensable where the conduct simply forms part of a pattern of interpersonal conflict unless there is conduct that is threatening or abusive.
In short, to the extent that a circumstance arises within the context of interpersonal conflict that is not threatening or abusive, employers need to ensure the Board has been provided the information necessary to make this determination.
“Traumatic events” are your enemy
Traumatic events that directly cause mental disorders such as PTSD, Depression, Anxiety and
Adjustment Disorders, for example, should be rare occurrences but, unfortunately, are difficult to prevent through any new systems or procedures implemented by an employer. Traumatic events may result from a significant accident in the workplace that falls squarely under the governance of traditional occupational health and safety procedures in place in the workplace.
Traumatic events may also occur in many cases from non-workers or external events (eg. an armed robbery, a victim on the scene that an emergency worker attends at, or an abusive customer or patient). It is not difficult for an employer to accept that many of these types of events cause significant harm to their employees and validly result in a compensable claim.
It is more difficult for an employer to accept that a worker who was trained and educated for a career in certain occupations/positions should have a claim accepted arising out of events that are known to occur or potentially occur in that occupation.
Overall, the assessment of whether an event is unusual and distinct from the duties and interpersonal relations of a worker’s employment (or a stressor is excessive in intensity and/or duration from what is experienced in the normal pressures or tensions of a worker’s employment) is very fact driven. Further, it is not readily apparent how to reconcile some of the decisions to date which means that employers need to give careful attention to circumstances
- 26 - that could be considered traumatic events, and employers should provide as much support as possible to workers who encounter such events to minimize the potential harm caused.
In short, employers need to ensure that the Board understands the types of events/stressors that a worker in the position of the worker and the particular claimant have been trained for, can expect to encounter, have encountered previously and how the worker has responded previously to similar events/stressors.
Finally, although bullying and harassment will usually be adjudicated under the significant stressor(s) provision, single incidents of alleged harassing behaviour may be so serious that they are dealt with under the traumatic event provision. This is significant to assessing the risk of a claim being accepted. If an isolated incident of harassment or bullying constitutes a traumatic event then it only has to be of causative significance to the resulting diagnosed mental disorder. If the harassing behaviour is not a traumatic event but is a significant stressor or part of a series of significant stressors then those stressors must be the predominant cause of the resulting mental disorder. In other words, it is much easier for a claimant to succeed if a traumatic event is established. Therefore, employers must ensure they do not miss this aspect of assessing bullying and harassment allegations because they are too focused on the significant stressor(s) provision.
“Significant stressors” can be prevented or at least minimized
A very large percentage of stressors that are excessive in intensity and/or duration from what is experienced in the normal pressures or tensions of a worker’s employment are going to squarely fall into the category of bullying and harassment or else be foreseeable as potential stressors due to the nature of the work performed. Bullying and harassment is conduct that employers can take concrete steps to address through education, training, reporting procedures, investigations and follow-up. Preventative measures can be put in place to address potentially inappropriate behavior by employees, supervisors, customers, contractors or other third parties who come into contact with workers of an employee. It may also be possible to provide employees with training on how to address other types of potential stressors that they may encounter which are inherent to the nature of their jobs. Albeit, it is not possible to completely eliminate potentially significant stressors especially those involving interaction of human beings in and around the workplace.
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However, of significant importance as it relates to claims under section 5.1 of the Act, the consequences to the worker from these potential stressors can be minimized before the worker suffers wage loss resulting from a psychiatric mental disorder. The Board will be far less likely accept a claim that a worker suffers from a mental disorder arising from one incident of abusive conduct by a co-worker or customer than a claim that arises from a lengthy pattern of harassment that was not proactively addressed by the employer.
Crucial to the early identification of potential bullying & harassment or other significant stressors is training of workers regarding recognizing negative conduct and stressors that occur to them or they observe, reporting such conduct or stressors and training supervisors on how to proactively recognize and respond to potential issues.
(B) OHS Bullying & Harassment Policies
The former section leads to a brief discussion about the OHS Policies that were just published by the Board. The original draft of the OHS Policy with respect to employers’ duties was based on a risk assessment approach that was not appropriate as it relates to the conduct at issue – bullying and harassment. A risk assessment approach is used for violence in the workplace resulting from the conduct of non-workers. This approach requires, for example, that employers identify potential risks of violence, inform workers of those potential risks and take steps to minimize the risk of violence. Bullying and harassment is much more nuanced behavior than violence. It is not sensible to require all employers to attempt to identify the potential bullies in a workplace and inform workers of those potential bullies. The finalized OHS Employer Duties
Policy prescribes more practical requirements that employers must take to attempt to address bullying and harassment. Many of these requirements will already be in place for employers with harassment or respectful workplace policies.
There is a very significant concern with respect to the definition of bullying and harassment contained in the OHS Policies. First, it is notable that the definition is not a complete definition.
It simply states that bullying and harassment, “includes any inappropriate conduct or comment
…”. This is not overly concerning on its own. In fact, currently there is nothing that requires employers to adopt this definition in their internal policies or to even have a definition of bullying
& harassment in their policies.
It is recommended that employers adopt definitions of bullying and harassment that contain certain limitations and exclusions. One such exclusion is the legitimate exercise of
- 28 - managerial/supervisorial direction of the workforce (ie. ‘labour relations exception’). The potential concern with the Employer Duties Policy is that the exclusion attempts to import a determination of whether an employer’s actions are reasonable into an assessment of whether bullying and harassment occurred. In our view, an employer can make unreasonable decisions or inaccurate decisions as long as it does so in a manner that is not abusive, threatening, targeted or otherwise for improper motives. The reasonableness of the decision should not be the focus of any assessment in this context. To be clear, the OHS Policies do not mean that unreasonable decisions of employers constitute bullying and harassment. However, in our view the use of this terminology in the Policies may lead to inappropriate application and misunderstanding about the true nature of workplace bullying & harassment.
(C) Jurisdictional Issue
The B.C. Court of Appeal handed down a very important and useful decision for employers in the Fall 2012: Downs Construction v. Workers’ Compensation Appeal Tribunal, 2012 BCCA
392. The Court in Downs Construction, made very emphatic findings as it relates to the exclusive jurisdiction of WorkSafeBC to deal with injuries arising from the workplace even if the
Act and related policies result in a gap in a remedy for the injured worker. The decision is based on Section 10 of the Workers Compensation Act which states:
Section 10 states:
The provisions of this Part are in lieu of any right and rights of action , statutory or otherwise, founded on a breach of duty of care or any other cause of action , whether that duty or cause of action is imposed by or arises by reason of law or contract, express or implied, to which a worker , dependent or member of the family of the worker is or may be entitled against the employer of the worker, or against any employer within the scope of this Part, or against any worker , in respect of any personal injury, disablement or death arising out of and in the course of employment and no action in respect of it lies.
The Court strongly held that a worker suffering from a mental disorder arising in and out of the workplace cannot take legal action in court whether or not the worker is actually covered by the
Act.
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The extent to which causes of actions and remedies in wrongful dismissal cases are constrained by the Downs decision remains to be seen. It is also not clear as to the extent, if any, to which an arbitration board or the human rights tribunal’s jurisdiction will be restricted.
This is a complicated area of the law that will evolve. Given the potential uncertainty and size of moral damage awards, punitive damage awards and human rights awards, employers should seek legal advice with respect to the jurisdictional issue when faced with any legal claim involving events that arose out of the workplace including allegations that an employee was terminated in a bad faith manner or was harmed by a “poisoned” work environment.
(D) Other issues
An exhaustive review of the Board’s policies and procedures applicable to claims generally is beyond the scope of this paper. However, some key statutory issues for employers to consider include:
1. Reporting obligations on employers and workers as it relates to injuries at the workplace are governed by Division 5 of the Act. Section 54 requires employers to report most significant injuries within three days including any injury for which the worker seeks medical attention from a healthcare provider.
2.
3.
Section 55 sets out a time limit of one year for workers to make a claim. However, there are exceptions and as it relates to mental disorder claims under section 5.1 of the Act, the Board is currently creating policy as to the application of the time limit to circumstances involving long term bullying and harassment, for example, that ultimately culminates in a mental disorder.
Pursuant to section 96.2 of the Act, upon application for request for review to the Review
Division of an initial claims decision, the Board must provide the parties to the review with a copy of its records respecting the matter under review.
4.
5.
Section 95 of the Act prohibits disclosure of information obtained by an employer from the Board during the claims adjudication process.
The Act at Part 3 Division 6 governs the Prohibition Against Discriminatory Action.
Employers must be careful not to be perceived to be retaliating against a worker in any way for filing a claim.
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