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.