Legal Affairs: No legal remedy to fix an unhappy workplace

The hard reality is that in British Columbia, employers have no legal duty to ensure a happy workplace, with limited exceptions.

  • Dec. 8, 2015 6:00 a.m.

David M. Brown, contributor

 

Lawyers regularly meet with people dealing with chronic work related stress.

They often come with similar complaints, including anxiety, insomnia and nausea.

Many of them are depressed and almost all of them are unhappy.

Often, these clients are confronting a toxic work environment ripe with passive aggression and ineffective management.

People in these situations often ask if they have any legal recourse.

After all, their ineffective and unsympathetic employer must have legal duties to provide for a healthy and happy workplace?

The hard reality is that in British Columbia, employers have no legal duty to ensure a happy workplace, with limited exceptions.

In B.C., the Workers’ Compensation Act’s occupational health and safety regulations provide for an over-arching duty of employee welfare, requiring every employer to “ensure the health and safety of all workers working for that employer.”

While these regulations do a good job of regulating the physical health of employees, providing language on everything from the height of handrails to radiation exposure, they do very little to address workers’ mental health or their general well-being.

Until very recently, the only mental disorder compensated by WorkSafeBC was for a “sudden and unexpected traumatic event”—think post-traumatic stress following an armed robbery.

In 2012, compensation for workplace mental disorders was expanded to include injuries “predominantly caused by a significant work-related stressor, including bullying or harassment, or a cumulative series of significant work-related stressors.”

While this sounds like a dramatic expansion of coverage, this change specifically exempted any illnesses “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.”

This suggests that mental disorders flowing from decisions such as workload, job assignments and employee discipline are not compensable.

In 2013, WorkSafeBC introduced its Bullying and Harassment Policy, confirming employer requirements with respect to harassment complaints, investigations and dispute resolution.

This policy identified bullying and harassment to be 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.”

However, exclusions were again specified for employer actions relating to the management and direction of workers in the workplace.

While these changes should help the mental health of workers, it is also clear that these protections have very limited reach.

Workers also have little recourse outside of WorkSafeBC, and only in exceptional circumstances can an employee in a toxic work environment advance a constructive dismissal claim for breach of contract or a civil claim for depression and other mental injuries.

This sends a rather chilling message. While there are many business and moral reasons why employers should be concerned about the health and well-being of their workers, there are very limited legal obligations to ensure a happy and positive workplace.

David M. Brown is a litigation lawyer for the Kelowna law firm Pushor Mitchell specializing in the areas of labour and employment law.

250-869-1114 dbrown@pushormitchell.com

 

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Cops For Kids ride wraps in Okanagan

No pomp, no circumstance for end of milestone 20th anniversary fundraising bicycle trip

Former Kelowna cop faces fourth lawsuit alleging sexual assault

Ex-Mountie Brian Mathew Burkett is also separately facing seven charges of breach of trust

QUIZ: A celebration of apples

September is the start of the apple harvest

Smoky skies clearing throughout B.C. Interior

Environment Canada expects “widespread” improvement for all affected areas by Sunday

B.C. or Ontario? Residential school survivors fight move of court battle

It’s now up to Ontario’s Court of Appeal to sort out the venue question

B.C. transportation minister will not seek re-election

Claire Trevena has held the position since 2017

Squabble over mask policy at LUSH in Kelowna mall

The woman filmed the encounter at LUSH Cosmetics, where wearing a mask in-store is company policy

Province opens ‘middle income’ housing in Kelowna

Prices on the units are $1,300 for a one-bedroom and $1,780 for a two-bedroom, nearing area-average prices

Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

Young B.C. cancer survivor rides 105-km with Terry Fox’s brother

Jacob Bredenhof and Darrell Fox’s cycling trek raises almost $90,000 for cancer research

B.C. migrant, undocumented workers rally for permanent residency program

Rally is part of the Amnesty for Undocumented Workers Campaign led by the Migrant Workers Centre

Reward offered for return of Okanagan puppy

An 11-week-old boxer-mastiff cross pup was allegedly taken from its Kelowna Friday, Sept. 18

Preparations underway for pandemic election in Saskatchewan and maybe B.C.

Administrators in B.C. and around the country are also looking to expand voting by mail during the pandemic

Most Read