Bullying and Harassment, or Not

Tragic cases and more mundane legislative changes have everyone talking about bullying and harassment.  For employers it is necessary to take a step back and consider what is not workplace bullying and harassment.

In BC in particular, with the advent of the new mental disorder provisions of the Workers Compensation Act, there has been a surge of uninformed discussion creating an expectation of many employees that anything they don't like in the workplace can be turned into a claim with WorkSafeBC.

This is largely the fault of Bill 14  (the legislation that changed section 5.1 of the Workers Compensation Act) being commonly spoken of as a law about bullying and harassment.  It is true that section 5.1 refers to bullying and harassment, but only as one of many things that might be "a significant work-related stressor" that could support a claim for compensation.

As for the claims we often see from employees unhappy about a performance review or about how they are managed, section 5.1  is clear - it does not cover employer decisions about the worker or the worker's employment, including about work to be performed, working conditions, discipline or termination.

Finally, before a workers compensation claim can succeed, bullying and harassment at work must be the predominant cause of a "mental disorder" diagnosed by a psychiatrist or psychologist in accordance with current psychiatric standards.

We will continue to see cases that fall everywhere on the spectrum and it will take some time before the message is understood:  not all problems, upset, discomfort or discontent at work, even if caused by poor or insensitive management or by silly, stupid or insensitive conduct of fellow workers, will be bullying and harassment for which an employee can expect redress.

It is worth quoting from a decision that is now 18 years old but which is repeatedly referred to today in this overheated bullying and harassment environment:

I do not think that every act of workplace foolishness was intended to be captured by the word "harassment." This is a serious word, to be used seriously and applied vigorously when the occasion warrants its use. It should not be trivialized, cheapened or devalued by using it as a loose label to cover petty acts or foolish words, where the harm, by any objective standard, is fleeting. Nor should it be used where there is no intent to be harmful in any way, unless there has been a heedless disregard for the rights of another person and it can be fairly said "you should have known better."

BCGEU v. Government of British Columbia, [1995] B.C.C.A.A.A. No. 131 (QL) (Laing)

You can look here, here and here for previous posts about Bill 14 and mental disorders under the Workers Compensation Act.

Bill 14 bullying discipline harassment mental disorders performance review section 5.1 Workers Compensation Act



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