The British Columbia government recently passed amend-ments to Workers Compensation Amendment Act 2011, to come into effect on July 1, 2012. The Minister of Labour had introduced the amendments on May 2, 2012, proposing further changes to the Workers Compensation Act to address the issue of workplace bullying.
The new amendments clarify that a worker is entitled to compensation for a "mental disorder", as opposed to mental stress, if that mental disorder is either: (i) a reaction to one or more traumatic events arising out of and in the course of the worker's employment, or (ii) predominantly caused by a significant work-related stressor, including bullying and harassment, or a cumulative series of such stressors, arising out of and in the course of the worker's employment.
The mental disorder must be diagnosed by a psychiatrist or psychologist as a mental or physical condition that is described in the most recent American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders at the time of the diagnosis. The Workers Compensation Board (the Board) may appoint a psychiatrist or psychologist to review such a diagnosis and the Board may consider that review in determining whether a worker is entitled to compensation for the mental disorder. Furthermore, in order to be eligible for compensation, the mental disorder cannot be 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 working conditions, to discipline the worker, or to terminate the worker's employment.
These changes to the Workers Compensation Act apply to every decision of the Board or the Workers Compensation Appeal Tribunal on or after July 1, 2012, including decisions in respect of claims made but not finally adjudicated before July 1, 2012.
British Columbia is the fifth province to pass anti-workplace bullying legislation. Quebec was the first to incorporate anti-bullying legislation into its Act Respecting Labour Standards in 2004. Saskatchewan expanded the definition of harassment under its Occupational Health and Safety Act in 2007 to include personal harassment such as bullying in the workplace. In 2009, Ontario also expanded the definition of "workplace harassment" under its Occupational Health and Safety Act to encompass bullying in the workplace. In 2011, Manitoba made changes to its Workplace Health and Safety Act to include protection from workplace bullying.
The amendments to B.C.'s Workers Compensation Act are a significant step in dealing with workplace bullying and are intended to provide a more streamlined and simple method for targeting psychological harassment and bullying in B.C. workplaces. The long-term impact of these amendments will not be known for some time. The annual cost impact of these wage-loss claims is estimated at C$18- to C$20-million, excluding the administration costs of adjudicating claims or the anticipated increase in registered claims requiring adjudication. Additionally, it is unclear to what extent these amendments will impact the adjudication of matters by other tribunals. The B.C. Human Rights Tribunal, for instance, has jurisdiction to deal with certain types of harassment in the workplace where the harassment is based on discrimination under the Human Rights Code. The overlap between the two administrative bodies can lead to a multiplicity of claims by employees and a consequential cost increase to employers.
As a result, it is prudent for employers to revisit their workplace policies to ensure that bullying and workplace harassment are being adequately addressed in order to ensure statutory compliance and mitigate against the risk of these claims in the workplace.
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