Harassment and discrimination are not expected part of employment and therefore can cause compensable injury
A recent decision of the Ontario Grievance Settlement Board (GSB) has provided some much needed clarity as to under what circumstances losses to an employee resulting from mental stress stemming from workplace harassment and discrimination are compensable under Ontario’s Workplace Safety and Insurance Act (WSIA).
In this case, OPSEU v. Ontario, a grievance was filed alleging discrimination and harassment on the part of the employer. The employee asserted she experienced various medical symptoms as a result of the mental stress caused by the employer's actions, ultimately forcing her to take time off work. The employee sought, among other things, compensation for lost time and medical expenses incurred. The employee was seeking the same remedies under the WSIA.
The employer took the position that if the injury or illness alleged by the employee was compensable under the WSIA, that the arbitrator had no jurisdiction to grant those same remedies at the GSB. The arbitrator agreed with the employer, leaving only the issue of whether the employee’s illness was compensable under the WSIA.
Of note, on Jan. 1, 2018, significant amendments to the WSIA came into force. Those amendments included changes to subsection 13(5) of the WSIA -- changes directly applicable to this case and read as follows:
"A worker is not entitled to benefits for mental stress caused by decisions or actions 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 employment.
The union argued that subsection 13(5) should be interpreted to mean that losses resulting from mental stress caused by any action of an employer are excluded from compensation under the WSIA. Based on that interpretation of s. 13, the union argued further that since the majority of the harassing and discriminatory events which gave rise to the employee's mental stress were actions of the employer, that the employee’s claim under the WSIA would be barred on that basis.
The arbitrator disagreed with the union’s interpretation and held instead that while harassment and discrimination may arise in the course of a worker's employment, they do not relate to the worker’s employment. The arbitrator explained that harassing and discriminating actions are not the kinds of actions which a worker can reasonably expect an employer to take throughout their employment relationship, adding that they are strictly prohibited acts.
Given the arbitrator’s finding that harassing and discriminatory actions do not relate to employment, the arbitrator held that the employee's claim for remedies under the WSIA was not excluded by subsection 13(5) and could be compensable under the WSIA. Accordingly, the arbitrator concluded that he did not have the jurisdiction to grant those same remedies at the GSB.
Takeaway for employers
Employers should undergo a review of any ongoing cases of this nature, especially those involving allegations of mental stress. Given the findings of this decision, employers may be able to have parts of those cases dismissed outright on a preliminary basis given such claims ought to have instead been brought under the WSIA.
For more information see:
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OPSEU v. Ontario [2018] O.G.S.B.A. No. 7 (Ont. Grievance Settlement Bd.).
Brian Silva is an associate practicing labour and employment law with CCPartners in Brampton, Ont. He can be reached at (905) 874-9343 ext. 255 or [email protected].
