The Subjective Element of the Workplace Harassment Test and Decision No. 35/22

  • October 20, 2022
  • Kira Clarke

INTRODUCTION

The following is a case review of Decision No. 35/22 released on July 27, 2022. The only issue in this decision was the worker’s entitlement to Chronic Mental Stress (CMS). The decision was heard by a panel of the Tribunal, and it resulted in a rare split decision wherein the two side members formed a majority decision denying the worker’s appeal for entitlement, while the Vice-Chair, in dissent, would have allowed the appeal. The decision demonstrates some of the difficulties faced by parties and adjudicators in determining when facts of a claim will rise to the threshold of entitlement under the CMS law and policy.

This decision arose from the appeal of an Appeals Resolution Officer decision dated August 7, 2019, which denied entitlement to CMS. This followed from an initial decision at the operations level which had allowed entitlement, accepting that workplace harassment was the predominant cause of the worker’s mental stress injury.

THE FACTS

The worker began working as a Family Home Visitor (FHV) in 1998 as part of a family focused social services program delivered by the employer. In the FHV role, the worker taught parenting skills to high-risk parents with children in their care. FHV’s and Public Health Nurses (PHN) worked together in the delivery of this program.

In 2009, the worker began reporting to a new manager (NM), who she found to be less supportive and deferential than her predecessor. NM’s impugned behaviour as reported by the worker included unsupportive body language; a flat affect and lack of eye contact in their interactions; seeming annoyed at her suggestions or questions; and, on one occasion, rolling her eyes at the worker. The worker reported that the majority of the impugned behaviour occurred during team meetings, which took place every one to three months.

Subsequent to NM’s arrival, a legislative change occurred which reduced the scope of work that FHV’s were empowered to take on. This caused the employer to rely more heavily on PHN’s in the delivery of the program, and to reduce the number of FHV roles in the program from seven to two. Though NM was not involved in setting the new priorities based on the legislative change, she was responsible for implementing the changes in phases over a period of years. The changes were not well received by the FHV’s.

The worker stopped working in August 2017 and in 2018 initiated this CMS claim for anxiety and depression, which she alleged arose from workplace harassment and bullying by NM.