2013 Employment & Labour Conference Toronto
YOU THINK YOU’RE STRESSED?!: MENTAL HEALTH ISSUES IN THE WORKPLACE By Dan Black and Karen Bock
Introduction
Dealing with the impact on the workplace of any kind of an employee disability can be both difficult and frustrating, even for an employer that recognizes and fully respects an employee’s right under human rights law to have the employee’s disability accommodated to the point of undue hardship. And when an employee claims to be disabled from working because of a mental disability such as chronic stress, the situation can be particularly – ahem, stressful – for the employer. How do you deal with an employee who is so stressed that, when you ask for information about the employee’s medical restrictions and limitations, the employee claims that the mere fact of your request has given rise to even more stress? Canadian workplaces and the laws that govern them are undergoing a slow but certain evolution in the way that mental health issues are perceived and addressed. According to the Mental Health 1
Commission of Canada : “The proposition that work organization may create or aggravate risk to mental health is relatively new. 150 years ago the relationship of employment was seen as a purely commercial contract, an exchange of wages for services, and at that time the issue of mental injury as a category of remediable harm at work was raised only in order to dismiss it. Provision for psychological comfort or for the protection of mental health played no role in the terms of this contract, either express or implied.” [Citations omitted.]
1
Mental Health Commission of Canada, The Road to Psychological Safety, accessed at www.mentalhealthcommission.ca.
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150 years later, however, employers are increasingly – even regularly – being called upon to deal with a wide variety of mental health issues in the workplace, including stress-related disability claims, workplace bullying and harassment and, tragically, violence up to and including physical assault and murder. The law is often slow to respond to shifts in political, philosophical and other societal beliefs and priorities, and this is certainly true of the pace at which Canadian laws are incorporating and reflecting Canadian society’s increasing focus on the importance of ensuring psychological wellbeing in the workplace. However, there can also be no doubt that the pace of both legislative and common law change has been picking up in recent years. In 1993 and 2002, respectively, Saskatchewan and Manitoba introduced into their occupational health and safety laws provisions addressing harassment in the workplace. Subsequently, each of the following Canadian jurisdictions introduced into its occupational health and safety laws provisions designed to address workplace violence: British Columbia (2004), Alberta (2004), Prince Edward Island (2006) and Nova Scotia (2007), as did the Federal government (in 2008). 2
In June 2010, Ontario’s Occupational Health and Safety Act was amended to add definitions of “workplace harassment” and “workplace violence” and to create many new obligations for employers relating to the prevention of both workplace harassment and workplace violence. 3
The Canada Occupational Health and Safety Regulations enacted under the Canada Labour Code4 define “workplace violence” as “any action, conduct, threat or gesture of a person towards an employee in their work place that can reasonably be expected to cause harm, injury or illness to 2
Occupational Health and Safety Act, R.S.O. 1990, c. O.1, Part III.0.1.
3
Canada Occupational Health and Safety Regulations, SOR/86-304.
4
Canada Labour Code, R.S.C. 1985, c L-2.
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5
that employee” and require federally-regulated employers to prevent and protect employees 6
against “bullying, teasing, and abusive and other aggressive behaviour” . However, the sole or primary focus of workplace violence provisions in other jurisdictions is the prevention of physical, and not psychological, harm. 7
In June 2004, the Province of Québec became the first Canadian jurisdiction to implement employment legislation expressly prohibiting workplace psychological harassment. And on July 1, 8
2012, the British Columbia government amended the Workers’ Compensation Act to provide for compensation for mental disorders resulting not only (as remains the case under Ontario’s Workplace Safety and Insurance Act, 1997) from sudden and unexpected work-related traumatic events (such as witnessing the death of a co-worker), but also for mental disorders that are: “predominantly caused by a significant work-related stressor, including bullying or harassment, or a cumulative series of significant work-related stressors, arising out of and in the course of the worker’s employment”. Most recently, the Mental Health Commission of Canada (the “MHCC”) commissioned the Canadian Standards Association (“CSA”) and the Bureau de normalisation du Québec (“BNQ”) to draft and publish (in January 2013) a voluntary National Standard of Canada on Psychological health and safety in the workplace – Prevention, promotion and guidance to staged 9
implementation (the “CSA/BNQ Standard”). The stated purpose of the CSA/BNQ Standard is to: “provide a framework to create and continually improve a psychologically healthy and safe workplace, including:
5
Canada Occupational Health and Safety Regulations, SOR/86-304, Section 20.2.
6
Canada Occupational Health and Safety Regulations, SOR/86-304, Section 20.3.
7
An Act Respecting Labour Standards, R.S.Q., c. N.1-1, Sections 81.18 to 81.20.
8
Workers’ Compensation Act, R.S.B.C. 1996, c. 492, Section 5.1.
9
Psychological health and safety in the workplace – Prevention, promotion and guidance to staged implementation, CAN/CSA-Z1003-13/BNQ 9700-803/2013.
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a) the identification and elimination of hazards in the workplace that pose a risk of psychological harm to a worker; b) the assessment and control of the risks in the workplace associated with hazards that cannot be eliminated; … c) implementing structures and practices that psychological health and safety in the workplace; and
support
and
promote
d) fostering a culture that promotes psychological health and safety in the workplace.” With such an increasing focus on violence, harassment and psychological health in the workplace, it should come as no surprise that, in the wake of the April 2013 firing of former Rutgers basketball coach Mike Rice for verbally and physically abusing players during practice, Forbes Magazine 10
quoted Sharon Parella, a U.S. management-side employment lawyer, on the subject of workplace bullying and the implementation of laws to prevent it: “I believe this is the new claim that employers will deal with. This will replace sexual harassment. People who oppose it say these laws will force people to be polite at work. But you can no longer go to work and act like a beast and get away with it.”
Nevertheless, the fact remains that, in 2013, the majority of Canadian jurisdictions still have little or no legislation specifically aimed at addressing workplace violence, harassment and psychological 11
health. For example, the MHCC notes that: “Today … claims of mental injury have a modest chance of succeeding if the plaintiff or claimant can establish that the harm suffered was in whole or in part the result of reckless or intentional acts or omissions, the injurious outcomes of which were reasonably foreseeable.” [Citation omitted.]
10
http://www.forbes.com/sites/johnbaldoni/2013/04/03/why-employers-need-to-watch-the-mike-rice-bullybasketball-video/ 11
The Road to Psychological Safety, accessed at www.mentalhealthcommission.ca.
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but goes on to observe that: “That said, it is still onerous for employees to decide which branch of the law to use in framing such claims. And this difficulty is compounded by the fact that where people live in Canada influences the kinds of remedies available to them.” Human rights laws have long provided employees with protections against discrimination in employment on the basis of disability. These protections have gradually been adapting quite naturally and logically to apply to workplace mental health issues. As may be seen from the following examples, other types of Canadian laws, including workers’ compensation law, arbitral and labour law and the common law, have also been adapting, to greater and lesser extents, to address such issues. Mental Health Issues Under Human Rights Law
The very recent decision of the Human Rights Tribunal of Ontario (the “Tribunal”) in Sharon Fair v. Hamilton-Wentworth District School Board
12
will surely contribute to the stress felt by many
employers – at least pending the outcome of the appeal of the case that is surely inevitable – over liability for failure to accommodate employees with mental health issues. Ms. Fair commenced employment with the Hamilton-Wentworth District School Board (the “School Board”) in 1988. In 1994, she was assigned to the role of Supervisor, Regulated Substances, Asbestos. In October 2001, Ms. Fair developed a generalized anxiety disorder and went off work. She was hospitalized from December 2001 until January 2002 and was subsequently diagnosed with depression and post-traumatic stress disorder. Ms. Fair testified that her disability was the result of her highly-stressful job and her fear that she could be held personally liable if she made a mistake in overseeing the removal of asbestos from the School Board’s buildings. Ms. Fair explained that the Ministry of Labour had been critical of the 12
Sharon Fair v. Hamilton-Wentworth District School Board, 2012 HRTO 350 and 2013 HRTO 440 (Human Rights Tribunal of Ontario).
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School Board’s handling of its asbestos removal projects and told her that, as the supervisor responsible for overseeing these projects, she could be personally charged and ordered to pay substantial fines. Ms. Fair applied for and received disability benefits from March 2002 until April 2003, when the insurer decided that, although Ms. Fair was not yet ready to return to her own position, she was capable of performing gainful employment. The Tribunal held that Ms. Fair had “fulfilled her obligation to co-operate fully in the accommodation process”, by staying in “constant communication” with the School Board and by promptly providing “whatever information, including medical information”, the School Board requested. However, the Tribunal found that the School Board “failed to actively, promptly, and diligently canvas possible solutions to [Ms. Fair’s] need for accommodation”. In particular, the School Board “failed to take steps to investigate possible forms of accommodation” and “failed to offer [Ms. Fair] available, alternative work”. Rather, the School Board concluded that it was unable to re-employ Ms. Fair and terminated her employment in July 2004. The Tribunal concluded that, if the School Board had acted properly to accommodate Ms. Fair, she would have returned to full-time employment in June 2003. Accordingly, the Tribunal ordered the School Board to reinstate Ms. Fair to her employment – and to pay Ms. Fair damages equal to the wages, benefits and pension contributions she would otherwise have earned during the approximately 10-year period between June 2003 and the date of reinstatement to employment (less the amount of disability benefit and employment insurance benefits she had received). In addition, the Tribunal ordered the School Board to pay Ms. Fair $30,000 “as compensation for the injury to her dignity, feelings and self-respect”.
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An earlier decision of the Tribunal, in ADGA Group Consultants Inc. v. Lane,
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is another good
example of how badly things can go wrong when an employer that is unfamiliar with its obligations under human rights law is confronted with a workplace mental health issue. Mr. Lane applied for and was awarded a job with ADGA Group Consultants Inc. as a tester of software that controlled the aiming and firing of NATO artillery. Mr. Lane had the qualifications, experience and skills necessary to perform the job. Mr. Lane did not disclose to ADGA during the hiring process that he had Bipolar 1 Disorder. He also lied on his application about the number of sick days he had taken in his previous employment. However, within the first five days of his employment, Mr. Lane revealed to ADGA that he had bipolar disorder and advised ADGA of the typical triggers of manic episodes. He also informed ADGA how to identify when he was becoming manic and how to respond to such a situation (i.e., by contacting Mr. Lane’s wife and doctor) so as to minimize the impact of his condition on his job performance. ADGA was concerned about whether Mr. Lane could handle the stress of the job and told Mr. Lane ADGA would get back to him in two days. Mr. Lane’s concern that his employment might be terminated because he had revealed his medical condition caused him to enter a pre-manic phase. Despite recognizing this fact, two days after Mr. Lane revealed his medical condition, ADGA proceeded to terminate Mr. Lane’s employment. ADGA did not seek legal advice or try to find out more about Mr. Lane’s condition. ADGA told Mr. Lane it had no alternative positions available and did not contact either Mr. Lane’s wife or Mr. Lane’s doctor to advise that Mr. Lane was in a pre-manic phase and that his employment had been terminated.
13
ADGA Group Consultants Inc. v. Lane, [2007] O.H.R.T.D. No. 34 (Human Rights Tribunal of Ontario).
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Within hours, Mr. Lane escalated into full-blown mania and was hospitalized for 12 days. He entered a cycle of depression and was unable to look for other work. He was forced to sell his family home. The strain and hardship ultimately caused his marriage to fall apart. Mr. Lane filed a human rights complaint alleging unlawful discrimination by ADGA on the basis of his disability. ADGA argued that the termination was justified because Mr. Lane had misrepresented his ability to perform the essential duties of his job. After a hearing, the Ontario Human Rights Tribunal (the “Tribunal”) concluded that Mr. Lane was “fully capable” of performing the essential duties of his job, and that human rights law justified Mr. Lane’s decision not to disclose his medical condition (and to lie about his sick days) during the hiring process. The Tribunal held that ADGA had discriminated against Mr. Lane by dismissing him “because of his disability and perceptions as to the impact of that disability on workplace performance”. In particular, ADGA had acted “precipitately” in terminating Mr. Lane’s employment without first obtaining all relevant information about Mr. Lane’s disability and considering whether ADGA could accommodate Mr. Lane’s disability without undue hardship. The Tribunal contrasted ADGA’s response to Mr. Lane’s disclosure of his medical condition with the response of one of Mr. Lane’s previous employers, LINMOR Technologies (“LINMOR”). Mr. Lane had educated his manager at LINMOR about his disability by providing a list of symptoms to watch out for. When LINMOR’s manager noted these symptoms in Mr. Lane’s behaviour, LINMOR contacted Mr. Lane’s wife, who assisted Mr. Lane to obtain medical attention. Mr. Lane typically returned to work after a short period of time, during which LINMOR reassigned his work to other employees. LINMOR rated Mr. Lane’s performance highly, describing him as “hardworking and productive”. His performance review stated that Mr. Lane “meets and in some areas exceeds expectations” and recommended that he “could be considered for a team leadership role.”
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Had ADGA responded to Mr. Lane’s mental disability as LINMOR had done, the situation might have been completely different. As it was, the Tribunal ordered ADGA to pay Mr. Lane a total of almost $80,000 in damages:
$35,000 general damages for violation of Mr. Lane’s inherent right to be free from discrimination;
$10,000 damages for the reckless infliction of mental distress;
$34,278.75 special damages for loss of salary resulting from the violation of Mr. Lane’s rights; and
prejudgment and post-judgment interest.
On appeal14, the Ontario Superior Court of Justice, Divisional Court upheld both the Tribunal’s findings and damage awards. Mental Health Issues Under Workers’ Compensation Law
Workers’ compensation law typically provides for payment of benefits in relation to mental health issues only when a mental disorder arises suddenly, as a result of an unexpected and traumatic workplace event – for example, post-traumatic stress disorder caused by witnessing the death of a co-worker. Nevertheless, claims for payment of workers’ compensation benefits are occasionally granted in relation to conditions with a more gradual onset, including those that involve some degree of apparent insensitivity on the part of the employer. For example, in Decision No. 815/0915, the Ontario Workplace Safety and Insurance Appeals Tribunal (the “WSIAT”) considered an appeal by a deceased worker’s estate from a decision of the 14
2008 CanLII 39605 (Ontario Superior Court of Justice, Divisional Court).
15
Decision No. 815/09, 2009 ONWSIAT 2309 (Workplace Safety and Insurance Appeals Tribunal).
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Ontario Workplace Safety and Insurance Board (the “WSIB”) denying entitlement of the estate to compensation benefits. The 54-year old worker was a truck driver who had previously been diagnosed with diabetes, high blood pressure, hypertension and kidney problems. He was found dead in the cab of his truck on a Tuesday morning at the location of a client to which he was making a delivery. He had suffered a heart attack. The truck driver’s widow gave evidence that her husband had spent the previous weekend in his truck, in a client’s factory parking lot, while waiting to complete a delivery. He had phoned his wife numerous times over the weekend and repeatedly expressed his anger and frustration that his employer had scheduled nine deliveries for him, with the predictable result that he arrived at the last client after the close of business hours on a Friday. To ensure security of the cargo, his employer did not permit him to leave the truck unattended. The weather was hot and humid, and then rainy, windy and cold so it was difficult for the worker to leave the truck to stretch and exercise. He complained to his wife that he was unable to open the windows of the truck and the air conditioning made his muscles cold and uncomfortable. He complained of pain in his shoulder and back and leg cramps inside the small cabin of the truck. He also complained of being unable to purchase food appropriate for his diet because he could only drive the large truck within industrial areas. The worker’s estate filed a claim for payment of workers’ compensation benefits, asserting that the worker’s death was work-related. According to WSIB policy, benefits were payable only if the worker’s pre-existing, non-work-related health conditions had been aggravated by “unusual physical exertion for the individual and/or acute emotional distress with no significant delay in the onset of symptoms”. The WSIB ruled that the worker’s death was not the result of a work-related aggravation of his non-work-related conditions.
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On appeal, the WSIAT concluded that the worker’s estate was entitled to payment of benefits, despite the delay between the worker’s anger and frustration over the weekend and his death early on Tuesday morning, because “the worker had a pre-existing heart condition which was aggravated by acute emotional distress which resulted in the immediate onset of the heart failure which resulted in the worker’s death.” The WSIAT had arranged for a cardiologist to review the worker’s file and submit a report. According to the cardiologist’s report: “I think that the events before the death had a precipitating cause in the final event, either precipitating ventricular fibrillation or a myocardial infarction. It is clear that his stress level was very high based on all the driving he did in a storm, his inability to treat his diabetes, and his anger about being on the trip, plus the fact that he was probably dehydrated due to the heat and humidity. With all of these factors, increased clotting in the body in a patient with a vulnerable heart clearly played a precipitating role here. … It is clear that he had cardiovascular death and it is clear that his risk factor, especially diabetes, played a major role. I think it is also very probably that the stresses he was under at the time or just before his death played a role in precipitating the event, especially driving in a bad storm, high temperature and humidity leading to dehydration, his anxiety over his diabetic control, and his anger. These stresses all led to a change in equilibrium of his clotting system, which likely resulted in thrombosis of one of his coronary arteries or a cardiac arrhythmia leading to his death. My conclusion is that he almost certainly had pre-existing cardiovascular disease but this long trip led to anger and anxiety and inability to control his diabetes which were all precipitating factors in his sudden death.” [Emphasis added.]
Mental Health Issues Under Arbitral and Labour Law
A decision of the Public Service Grievance Board (the “PSGB”) affirms a concept that many employers are likely to find quite startling: damages may be payable to an employee for mental distress resulting from an employer’s failure to comply with an implied employment contract term
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that that creates an expectation of an intangible “psychological benefit”; for example, the right to a workplace free from racial harassment. 16
In Charlton v. Ontario (Ministry of Community Safety and Correctional Services) , the employee was a correctional officer of African descent who, along with seven other employees who belonged to racial or ethnic minorities, received an anonymous letter containing racial slurs and threats of violence. Both the employer and the Toronto Police conducted investigations but were unable to identify the author of the letters. Ms. Charlton claimed she was so traumatized by the letter that she was unable to continue working. She went on medical leave and was paid her full salary for six months. She applied for and was granted payment of workers’ compensation benefits under the Ontario Workplace Safety and Insurance Act, 1997. She also filed a grievance against her employer, claiming damages for lost wages and mental distress. The employer did not deny that there had been racial harassment and made efforts to reintegrate Ms. Charlton into a workplace free from harassment. The employer also agreed to compensate Ms. Charlton for harm resulting from her receipt of the letter. The only issue before the arbitrator was the amount of damages payable by the employer. Ms. Charlton claimed, and was awarded, damages equal to the difference between her WSIB benefits and the amount of the regular salary she would otherwise have earned during the time she was on leave. With respect to damages for mental distress, the PSGB rejected the employer’s argument that such damages should be limited to a maximum of $10,000 which, at that time, was the maximum amount available for mental anguish under Ontario’s Human Rights Code. However, the PSGB held that freedom from workplace racial harassment was not only a right under the Human Rights
16
Charlton v. Ontario (Ministry of Community Safety and Correctional Services), 2007 CanLII 24192 (Public Service Grievance Board).
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Code, but also an implicit term of Ms. Charlton’s employment contract that amounted to a “contractual guarantee of freedom from racial harassment”. Typically, an employee with a compensable work-related injury is prohibited by workers’ compensation law from suing the employer for damages relating to the injury. However, the PSGB concluded that Ms. Charlton was not precluded from claiming payment of damages by her employer by the fact that she had claimed and received payment of workers’ compensation benefits: “The Board does not accept the argument that, where there has been the breach of the contractual guarantee of freedom from racial harassment in the workplace, that compensation for loss of income relates only to the victim’s health. The jurisdiction of this Board is to compensate the grievor for damage to her dignitary interest as far as can be done by a monetary award. A monetary award that does not provide for complete compensation for the full financial loss arising from the breach of such a fundamental term of the contract would fall well short of this remedial mandate. Put another way, if the grievor’s dignitary interest is to be restored, she should not be financially worse off than if the racial harassment had not occurred. The Board, therefore, concludes that it does have jurisdiction to compensate the grievor for all financial losses that flowed from the workplace racial harassment that she suffered.”
The PSGB relied on an earlier decision of the Supreme Court of Canada,
17
in which an insurance
company was ordered to pay damages for mental distress for denying payment of disability benefits, as support for the proposition that, even without bad faith conduct on the part of the employer, damages for mental distress could be awarded for the breach of a term of an employment contract that creates an expectation of an intangible “psychological benefit”. The PSGB concluded that Ms. Charlton’s “contractual guarantee of freedom from racial harassment in the workplace” created an expectation of a “psychological benefit” and awarded damages for mental distress resulting from the employer’s breach of that “guarantee”: “It is this provision that has been breached and, while the employer has been beyond reproach in attempting to deal with the problem of workplace racial harassment after 17
Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 S.C.R. 3.
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it arose, there is also no question that the grievor has suffered very substantial mental distress as a result of the particularly nasty form of workplace harassment. Given the very substantial disruption to the grievor’s life and peace of mind that was caused by the breach of the contractual guarantee of freedom from racial harassment in the workplace, the Board considers that the amount of damages for mental distress should be no less than what was considered in the Fidler case. Accordingly, the Board directs the employer to pay the grievor forthwith the sum of $20,000 for mental distress arising from the breach of the contractual guarantee of freedom from racial harassment in the workplace.” In Canada Safeway Ltd. v. United Food and Commercial Workers Union, Local 401 (Pady Shenher 18
Grievance , an arbitrator held that an employer should have separated the parties to a workplace harassment complaint during the course of an investigation into the complaint. In doing so, the arbitrator indicated that an employer’s obligation to maintain a safe workplace “encompasses psychological and [sic] well as physical safety”. In that case, an employee filed a grievance in relation to an altercation with a co-worker, in which the co-worker pushed on the brim of the employee’s baseball hat during a heated argument. The employer investigated the employee’s complaint about the co-worker’s conduct and ultimately issued a written warning to the co-worker. However, during the investigation, the co-worker continued to work at the same store as the employee. The employee filed a grievance seeking damages of $10,000 on the basis that the employer had failed to provide her with a safe working environment and caused her significant emotional trauma by failing to transfer the co-worker to another location. The employee also filed a second grievance when the co-worker later bumped his power jack into hers. The arbitrator concluded that the employer’s investigation and the written warning imposed were appropriate. However, the arbitrator held that, because the employee’s initial complaint suggested workplace violence, the employer should have ensured the employee’s safety pending the outcome
18
Canada Safeway Ltd. v. United Food and Commercial Workers Union, Local 401 (Pady Shenher Grievance, th 175 L.A.C. (4 ) 266 (G.E. Power, Arbitrator).
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of the investigation by suspending the co-worker with pay. The arbitrator awarded the employee $1,000 in damages. The arbitrator dismissed the employee’s second grievance on the basis that the employee and her union failed to demonstrate that the contact between the power jacks was deliberately caused by the co-worker. On this basis, the arbitrator concluded that there was no evidence of any ongoing safety threat to the employee. In Manitoba (Department of Family Services and Housing) v. Manitoba Government Employees’ Union (A.B. Grievance)19, an arbitrator considered whether an employer was justified in disciplining and ultimately terminating the employment of an employee who had a long history of suffering from depression and an anxiety disorder, along with numerous physical conditions that had required extensive surgery, but who nevertheless appeared to be at least partly responsible for her misconduct. The employee worked for the employer for almost 26 years. Until the last 1½ years of her employment, she had no disciplinary record. Within those 1½ years, the employee received a written reprimand for removing a file about her daughter (who had autism and who received services from the employer) from a supervisor’s cabinet, a one-day suspension for circulating an inappropriate document to her co-workers, another one-day suspension for insubordinate behaviour and a two-day suspension for further insubordinate behaviour. She stopped reporting to work and was placed on an unpaid medical leave, during which she was caught in a supervisor’s office, searching through a cabinet for information to help her defend against the allegations of misconduct that had led to her reprimand and suspensions. The employer terminated her employment, alleging just cause.
19
Manitoba (Department of Family Services and Housing) v. Manitoba Government Employees’ Union (A.B. Grievance), [2009] M.G.A.D. No. 12 (Michael D. Werier, Arbitrator).
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The employer argued that, in disciplining the employee and terminating her employment, the employer had properly taken into account all relevant factors, including the employee’s medical condition. However, the arbitrator concluded that the employee’s mental state had deteriorated over time. Because the employer was already aware that the employee had mental health issues, the employer knew or ought to have known that her escalating behaviour, which culminated in her “bizarre” and irrational behaviour of entering a supervisor’s office and searching through his cabinet, was attributable at least in part to the employee’s medical condition. According to the arbitrator: “These circumstances dictated further exploration at the very least before the imposition of termination, the most severe form of discipline.” The arbitrator’s remedy reflected an attempt to achieve some balance between the rights and obligations of each of the employee and her employer. He concluded that the employee was not fully to blame for her conduct because of her mental state, but that she was sufficiently aware of her wrongdoing that it was appropriate for her to take some blame. He also concluded that, although the employer had tried to address the employee’s performance issues in a way that it believed to be an appropriate manner, the employee could not be held responsible for the employer’s failure to seek and obtain a better understanding of her mental state during the course of her repeated misconduct. In the result, the arbitrator dismissed the employee’s grievance of the one-day suspension, reduced to 1½ days the length of the second suspension and substituted a one-month suspension for the termination. Based on post-termination medical evidence that indicated the employee was unable to return to work, the arbitrator ordered the employer to reinstate the employee but immediately place her on a leave of absence long enough for her to qualify for her pension and to retire.
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Mental Health Issues Under The Common Law
It may well be appropriate to describe the common law as being the slowest and most reluctant area of law to adapt to Canadian society’s increasing concerns with, and focus on, workplace mental health issues. Canadian common law has recognized the right of employees to sue their employers not only for wrongful (including constructive) dismissal, but also for intentional infliction of mental distress – which requires an employee to establish that the employer has engaged in conduct which is: (a)
flagrant or outrageous;
(b)
calculated to produce harm; and
(c)
resulting in a visible and provable illness ).
20
However, Canadian courts continue to hold that employees do not have the right to sue their employers for mental distress that is inflicted in a negligent (or reckless) manner. 21
In Wallace v. United Grain Growers Ltd. , the Supreme Court of Canada rejected the proposition that employees may sue their employers for breach of a duty of good faith and fair dealing in the manner of dismissal from employment. According to the Supreme Court of Canada, the creation of such a duty of care (described by the Court as a “radical shift” in the law) is “a step better left to be taken by the legislatures.” Approximately ten years later, the Supreme Court of Canada sustained this conclusion in Honda 22
Canada Inc. v. Keays . In Honda, the Supreme Court of Canada held that damages in a wrongful
20
Piresferreira v. Ayotte, 2010 ONCA 384 (CanLII) (Ontario Court of Appeal), leave to appeal to the Supreme Court of Canada dismissed, 2011 CanLII 2095 (Supreme Court of Canada). 21
Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701 (Supreme Court of Canada).
22
Honda Canada Inc. v. Keays, [2008] 2 S.C.R. 362 (Supreme Court of Canada).
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dismissal action are generally limited to the loss suffered from the employer’s failure to provide reasonable notice of termination of employment. No damages are payable for any mental distress suffered by the employee as a result of the termination, unless the parties specifically contemplated at the time the employment commenced that a breach of the contract might cause the employee mental distress. According to the Supreme Court of Canada, although the parties to a particular employment contract may be found to have contemplated such suffering, the possibility of mental distress resulting from termination of employment is something that is generally not contemplated by employers and employees: “The contract of employment is, by its very terms, subject to cancellation on notice or subject to payment of damages in lieu of notice without regard to the ordinary psychological impact of that decision. At the time the contract was formed, there would not ordinarily be contemplation of psychological damage resulting from the dismissal since the dismissal is a clear legal possibility. The normal distress and hurt feelings resulting from dismissal are not compensable. Damages resulting from the manner of dismissal must then be available only if they result from the circumstances described in Wallace, namely where the employer engages in conduct during the course of dismissal that is ‘unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive’ (para. 98).” However, in both Wallace and Honda, the Supreme Court of Canada was considering mental suffering that results from the manner in which employment is terminated, and not mental suffering that results from the employer’s mistreatment of an employee during the course of the employment relationship. In Amaral v. Canadian Musical Reproduction Rights Agency Limited23, the Ontario Superior Court of Justice considered a case in which a long-service employee initially sued her employer for constructive or wrongful dismissal, seeking damages in lieu of notice, aggravated damages and a
23
Amaral v. Canadian Musical Reproduction Rights Agency Limited, 2007 CanLII 46701 (Ontario Superior Court of Justice).
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declaration that the employer and three of its senior managers were liable to her for bad faith. However, by the time of the trial, Ms. Amaral’s sole claim was for payment of damages for mental suffering inflicted either intentionally or negligently during Ms. Amaral’s employment. Ms. Amaral’s concerns began when her employer underwent a major restructuring in which it increased the number of employees by 50%, significantly changed its operational model and began to shift “from an intensely paper world to an electronic one.” Ms. Amaral responded in an insubordinate manner to the employer’s denial of her request for a promotion and objected to changes made to her duties and responsibilities. Ms. Amaral’s performance declined and her attendance and punctuality became issues that resulted in a letter of reprimand. Ms. Amaral had been diagnosed by her family doctor as suffering from acute depression. After receiving the letter of reprimand, she presented to her doctor as suicidal and suffered a complete mental breakdown that prevented her from returning to employment. After her breakdown, she was hospitalized frequently and was prescribed various anti-depressant and anti-anxiety medications. She also received electroconvulsive shock therapy. However, neither Ms. Amaral nor her doctor provided the employer with any details of what was wrong, why she had stopped attending work and when she would return. The trial judge found that Ms. Amaral had successfully masked her symptoms from her employer and its managers, who were unaware of any medical condition or any particular vulnerability on her part. Ultimately, the employer told Ms. Amaral that her duties had been permanently reassigned and that work appropriate to her abilities and medical condition would be assigned to her upon her return to work. The Superior Court of Justice relied on Wallace in concluding that “there is no specific tort of negligent infliction of mental suffering available”. Therefore, Ms. Amaral would only be entitled to damages if she was able to demonstrate the intentional infliction of mental distress. In all of the circumstances, the trial judge held that the employer’s responses to Ms. Amaral’s declining
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performance and punctuality were “proportionate and reasonable”. The Court therefore rejected Ms. Amaral’s claim for damages for intentional infliction of mental harm. 24
On appeal , the Ontario Court of Appeal determined that it was not necessary to decide whether an employee may sue an employer for negligent infliction of mental suffering in the absence of any allegations that the employer breached the contract of employment, because the trial judge’s findings meant that such a claim could not succeed. However, for the purpose of the appeal, the Court of Appeal stated that it was prepared to assume, without deciding, that such a right does exist. Piresferreira v. Ayotte and Bell Mobility Inc.
25
was a case in which the Ontario Superior Court of
Justice found a supervisor liable for both intentional and negligent infliction of mental suffering, as well as battery. The Court also held the employer vicariously liable for the supervisor’s wrongs and directly liable for negligence and constructive dismissal. Mr. Ayotte was a supervisor who was found by the Court to be critical, demanding, loud and aggressive. Witnesses testified that Mr. Ayotte had high expectations and a temper that he displayed by yelling and swearing at employees and by banging his fist on tables. About a year and a half before the employee left her employment, he became more verbally abusive of everyone who reported to him and, in particular, Ms. Piresferreira. On one occasion when Ms. Piresferreira failed to arrange a meeting with a client, Mr. Ayotte yelled and swore at her, criticized her for failing to do her job, refused to listen to her explanation, repeatedly told her to get away from him and physically pushed her away. He then told her “to get the hell out of his office” and that he was preparing a performance improvement plan (“PIP”) for her. 24
2009 ONCA 399 (CanLII) (Ontario Court of Appeal).
25
Piresferreira v. Ayotte and Bell Mobility Inc., 2008 CanLII 67418 (Ontario Superior Court of Justice).
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When Mr. Ayotte subsequently presented the PIP to Ms. Piresferreira, she filed a formal complaint against him with her employer. The employer sent Ms. Piresferreira an email message promising a response to the complaint – and, at the same time, setting a meeting to review the PIP. Ms. Piresferreira responded with a doctor’s note indicating that she would be unable to attend the meeting as a result of “stress leave due to anxiety – dealing with work harassment.” In response, the employer sent Ms. Piresferreira a letter that claimed she had declined to attend a meeting to allow Mr. Ayotte to apologize to her. Ms. Piresferreira never returned to work. The trial judge concluded that Mr. Ayotte “showed reckless disregard for Piresferreira’s emotional well-being” and that his conduct was “calculated to produce harm” even though he didn’t actually intend that Ms. Piresferreira would suffer the injury that she did. The trial judge also found that both the employer and Mr. Ayotte owed Ms. Piresferreira “a duty of care to ensure that Piresferreira was working in a safe and harassment-free environment without verbal abuse, intimidation or physical assault” and that they had breached this duty. In doing so, the trial judge stated: “In my view, it is reasonably foreseeable that a person of ordinary fortitude would suffer serious psychological injury if that person was regularly yelled and sworn at by her manager/supervisor/boss, was told by the manager/supervisor/boss that she did not know what she was doing, was not given the opportunity to explain her actions or defend herself, was pushed by the manager/supervisor/boss who at the time was clearly angry and out of control, and was immediately told that she would be put on probation or issued a PIP.” The trial judge awarded damages totalling just over $500,000. 26
On appeal , the Ontario Court of Appeal accepted the trial judge’s finding “that it was reasonably foreseeable that Ms. Piresferreira would experience mental suffering from the abusive manner in which Ayotte supervised her during her employment.” However, the Court of Appeal held that: “the trial judge erred by finding the tort of negligence was available against an employer and supervisor for conduct in the course of the [employee]’s 26
2010 ONCA 384 (CanLII) (Ontario Court of Appeal), leave to appeal to the Supreme Court of Canada dismissed, 2011 CanLII 2095 (Supreme Court of Canada).
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employment….” According to the Court of Appeal, policy reasons foreclose the recognition of a duty of care that would “require employers to take care to shield employees from the acts of other employees that might cause mental suffering.” Instead, the Court of Appeal concluded that: “the employee who is caused mental distress by an employer’s abusive conduct can claim constructive dismissal and still have recourse to damages under the Honda framework. Recognizing the tort in the employment relationship would overtake and supplant that framework and all of the employment law jurisprudence from which it evolved. In other words, in the dismissal context, the law already provides a remedy in respect of the loss complained of here. The recognition of the tort is not necessary.” As for employees who suffer mental distress from employer conduct that is insufficient to support a claim for constructive dismissal, the Court of Appeal stated: “…much disagreement can be anticipated as to whether criticism is ‘constructive’, whether work performance is ‘poor’, and whether the tone of the former was appropriate to the latter. The existence of the tort would require the resolution of such disputes. The court is often called upon to review the work performance of employees and the content and manner of their supervision in dismissal cases. It is unnecessary and undesirable to expand the court’s involvement in such questions. It is unnecessary because if the employees are sufficiently aggrieved, they can claim constructive dismissal. It is undesirable because it would be a considerable intrusion by the courts into the workplace, it has a real potential to constrain efforts to achieve increased efficiencies, and the postulated duty of care is so general and broad it could apply indeterminately.” The Court of Appeal reduced Ms. Piresferreira’s damages to $15,000 for the battery committed by Mr. Ayotte when he pushed Ms. Piresferreira, approximately $88,000 pay in lieu of reasonable notice of termination of employment and $45,000 “for mental suffering from the manner of her dismissal”. As the common law stands, therefore, it appears that real change in terms of providing remedies for an employer’s failure to respect, protect and/or promote psychological well-being in the
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workplace – at least in the absence of a situation that gives rise to a wrongful or constructive dismissal – has indeed been left to the legislatures. Conclusion
Employment laws have evolved very significantly from what they were 150 years ago. Nevertheless, most Canadians still spend the majority of their waking hours at work. Further, the line between “home” and “the workplace” is increasingly being blurred. Within this context, it should come as no surprise that Canadian society is increasingly focused on mental well-being in the workplace. Canadian judges appear to be determined to leave it to the Federal and Provincial legislatures to establish legal protections for workplace mental well-being, and remedies for breaches of such protections, in all but the most egregious circumstances. However, at least some employment law tribunals and arbitrators do not share the reluctance demonstrated by our courts – and, in any event, the legislatures are gradually stepping up to the task. Employers are therefore well-advised to monitor closely the development and evolution of Canadian legislation and case law respecting workplace mental health issues. The stress of keeping informed on such developments as they arise is, surely, less than the stress of engaging, even inadvertently, in conduct that is contrary to the law, and having your mistakes scrutinized, itemized and remedied by a court, tribunal or arbitrator.
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