WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20180052
OBJECTING PARTY: Worker
REPRESENTED by: Self
RESPONDENT: Employer
REPRESENTED by: Self
HEARING: Hearing in Writing
HEARD by: M. Kimevski, Appeals Resolution Officer
DATE: October 23, 2018
ISSUE
The worker objects to the denial of initial entitlement for a mental stress injury as addressed in the following decisions by the Case Manager:
The December 18, 2017 decision denying entitlement to Traumatic Mental Stress (TMS).
The April 24, 2018 decision, which upheld the denial of entitlement to TMS; denied presumptive entitlement to Posttraumatic Stress Disorder (PTSD) in First Responders and Other Designated Workers; and denied entitlement to Chronic Mental Stress (CMS).
This claim was established and adjudicated based on the worker’s claim for a mental stress injury due to alleged workplace harassment. I note the worker’s submission received April 25, 2018 references what she refers to as a series of traumatic incidents previously encountered with inmates. However, such events were not claimed at the time the decisions were made; consequently, I do not have the jurisdiction to contemplate entitlement on the basis of those incidents.
Therefore, I preface my decision by making it clear that my findings will only address the worker’s claim within the context of a mental stress injury due to claimed workplace harassment.
BACKGROUND
The claim was established in September 2017 by the worker, then a 37 year old Staff Sergeant employed at a Detention Centre. She claimed to be overwhelmed and in a constant state of anxiety since experiencing various types of harassment and discrimination by members of the senior administration prior to her maternity leave in July 2016, particularly during her pregnancy.
The worker indicated that her issues did not begin until she started at a particular Detention Centre in February 2015. She detailed that she was the subject of gossip and harassment; she felt ostracized and isolated; she felt harassed when not given vacation time and training time; she was forced to do work outside her job description; she was not accommodated in accordance with her doctor’s recommendations during her pregnancy and feared for the life of her unborn child.
The worker stopped working in June and July 2016 using vacation time and then took maternity leave on August 1, 2016. She returned to work September 5, 2017, and claimed she became emotionally upset seeing the same people that harassed her. She sought medical attention and went off work September 6, 2017. She was subsequently seen by a psychologist and diagnosed with PTSD.
The employer retained the services of a third party firm to investigate the worker’s allegations and make factual findings and determinations as to whether there were violations of the Ontario Public Service (OPS) Workplace Discrimination and Harassment Prevention Policy (WDHP Policy). The worker also has an ongoing case with the Human Rights Tribunal of Ontario (HRTO).
The December 18, 2017 decision communicated that although the workplace issues may have been stressful and upsetting, the situations did not meet the criteria as defined in policy and there is no entitlement to benefits for TMS resulting from the employment functions. At the time of this decision, the investigation results were not on file.
The worker sought a decision under the new CMS policy dated January 2, 2018 and the December 18, 2017 decision was reconsidered in light of the updated TMS policy dated January 2, 2018. The investigation results were also submitted for review.
The Case Manager’s decision letter dated April 24, 2018 upheld the denial of entitlement to TMS on the basis that the events were not objectively traumatic and considered part of the normal employment function. Entitlement to PTSD in First Responders and Other Designated Workers was also contemplated, but rebutted. Further, it was concluded that entitlement under the CMS policy was not in order as there was no evidence of egregious or abusive behaviour, or evidence that would meet the threshold of workplace harassment or bullying.
The worker objects to the denial of initial entitlement to a mental stress injury and the case is before the Appeals Services Division for consideration. The worker requested a hearing in writing to resolve the appeal.
AUTHORITY
Operational Policies:
15-03-02 – Traumatic Mental Stress
15-03-13 – Posttraumatic Stress Disorder in First Responders and Other Designated Workers
15-03-14 – Chronic Mental Stress
ANALYSIS
In reaching my conclusion I considered all of the available information in the file and the position of the parties and I have evaluated the worker’s appeal in the context of the facts of the case and the application of that legislation and applicable policies. Based on my assessment of the evidence, I find the circumstances do not satisfy the criteria for entitlement to a mental stress injury and I will outline my reasons for reaching this conclusion.
Worker’s Position
In the submission received April 25, 2018, the worker expressed concern over the decision. She opines that because the employer’s investigation was relied upon, several of her complaints were missed or not investigated. Further, her allegations were categorized as being either ‘interpersonal conflicts’ or ‘employer’s actions’; however, the comments made by the investigator, showed it was harassment.
The worker indicates that had the WSIB conducted an investigation or read further into the external reports, inconsistencies in the administrative responses would have been recognized. She goes on to indicate that the investigator referenced the cumulative effect of two separate findings as inappropriate for her superior to engage in gossip and innuendo constituting workplace harassment and a poisoned work environment. Further, she highlights that the investigator stated that the ‘illiterate’ comment made to her by a superior constituted personal harassment.
The worker submits there are several substantiations to harassment and the condonation of a poisoned work environment in the investigator’s report. The standard of proof is based on a balance of probabilities, which was not considered, neither was the cumulative effect of the predominant cause of the workplace stressor.
Employer’s Position
The employer’s submission of September 12, 2018 indicates that the case underwent comprehensive review in determining that the eligibility requirements were not met under the applicable mental stress policies.
The employer concurs that eligibility under the presumptive legislation is not in order as the PTSD diagnosis was not a result of workplace exposure but rather allegations of workplace harassment. With respect to TMS, the employer indicates the worker’s claim was not established due to a sudden and traumatic event and while the WDHP investigation concluded the worker was in fact the subject of workplace gossip, under the TMS policy gossip is not considered to be workplace harassment. Further, the TMS and CMS policies share the definition of workplace harassment and it is opined that interpersonal conflicts between the worker and the employer did not amount to workplace harassment; the conduct did not reach a level of being egregious or abusive in nature; and discrimination is not covered under the CMS policy.
Summary of Events
In this case, the worker is claiming for numerous events, which are captured in the investigation. Noting there were six separate parts to the investigation (approximately 200 pages), I cannot capture every detail and I have summarized what I found to be the key aspects.
The worker claimed that from February 2015 to November 2015 she was denied developmental opportunities that she requested. During that period the worker also indicated that two men were promoted and she was told she was too new to her position. The investigator found that there was no evidence upon which to conclude that the worker was subject to any inappropriate treatment.
The worker registered to take a course in August or September 2015, and the course was being held on October 30, 2015. The worker sent e-mails on October 20, 2015 and October 23, 2015 seeking permission to attend, but did not hear back, yet another male staff member asked for permission to take a course and it was approved. There was some confusion over who bore responsibility to give permission to the worker to attend the course and the male staff member had been provided permission as he was a direct report of the supervisor. The investigator concluded there was no evidence to suggest that the lack of reply to the worker constituted discrimination on the basis of sex.
Another aspect into the approval of the October 30, 2015 course was investigated. The worker felt the supervisor that gave her approval was inappropriate in stating “Ok…it’s $300 if you cancel so it’s approved.” The investigator found there was nothing inappropriate in the enquiry into cost for cancellation.
On November 14, 2015 the worker submitted an Occurrence Report (OR) which outlined in her opinion hostile and inappropriate comments made to her by a Sergeant while on duty. The Sergeant told the worker in an elevated tone that he would not be cross-referencing the nominal sheet to the canteen order forms and stated “you are a micro-manager, you have all the rules. No one else on the desk does this and you should check with your partners because they do not do that”. He then pointed his fingers at her and continued “same thing you sent me [an] e-mail asking me to do this whatever, you are getting on my last nerve now.” The worker indicated the supervisor did not follow-up on the OR report. The supervisor indicated that he told the worker he had followed-up with the Sergeant and thought she was “fine”. The investigator found the supervisor did not follow-up appropriately with the worker in relation to the harassing and inappropriate comments and behaviour of the Sergeant. The investigator found that the Sergeant spoke to the worker in a hostile, aggressive and elevated tone and used language that was inappropriate for a subordinate employee to use with a superior in the workplace and the manner as described constituted personal harassment and the supervisor’s lack of follow-up constituted management failure to act.
On November 18, 2015 the worker had an e-mail exchange with a supervisor asking why she and other Staff Sergeants were not offered the developmental opportunity of open Deputy Operations positions when Sergeants had been approached for the same positions. The response was that there were others better suited at that time and as the e-mail exchange went on the supervisor indicated it was unfortunate the worker felt that way, and he would stop sticking up for her when colleagues go off on her work. The worker was not aware of the complaints. The investigator indicated that a superior must put gossip and innuendo to rest when they are aware of it; gossip and innuendo are unproven accusations and constitute workplace harassment and the supervisor’s participation in such talk rises to the level of condonation of a poisoned work environment.
During the worker’s November 2015 Performance Readiness Assessment (PRA) the worker wrote in the employee comments section “Character is what you do when no one is looking.” The worker stated that in response her supervisor commented, “My inside voice would ask you if you are illiterate.” The investigator indicated the supervisor could not recall the comment, but found that he said it. The investigator concluded that the comment was of such significance to constitute personal harassment.
The worker stated that on November 19, 2015 she submitted her Christmas vacation request and received no reply. She submitted another request on December 10, 2015 and again no reply. She then complied with an e-mail directive and submitted the same vacation request on December 16, 2015 and followed up on December 19, 2015. She only received one of three requested days off. The investigator concluded that the supervisor acted on the worker’s and every other staff member’s vacation requests as quickly as he was able. The supervisor adhered to the past practices of approving vacation based on operational requirements and seniority.
The worker became pregnant in November 2015 and met with her supervisor in December 2015 to discuss a ‘no nights’ accommodation. She then provided medical notes on December 17, 2015 and January 7, 2016 which spoke to no nights; exhaustion secondary to 12 hour shifts; and the need for shorter day shifts; but, she was not accommodated. The investigator found that as of January 14, 2016 the supervisor had the medical, but waited 14 days to meet with the worker to prepare an accommodation plan, which was unreasonable and when they met on January 28, 2016, the issue of stress was discussed and it was to be monitored. The investigator found that as of March 10, 2016, the worker’s supervisor was put on notice that the worker was having trouble coping with work and expressed her need for updated accommodation out of her role and the worker was faced with unnecessary hoops causing additional stress in an already stressful situation. It was found that there was a complete failure to provide an updated accommodation between March 10, 2016 and April 7, 2016. The investigator concluded that the supervisor breached the WDHP Policy by engaging in a discriminatory practice based on pregnancy that resulted in failure to provide effective and appropriate accommodation up to the point of undue hardship.
There was a January 19, 2016 directive indicating that when there were more than two Staff Sergeants scheduled on the same shift in the General Duty Office (GDO), then they would be reassigned to other work. The worker claimed there was an inconsistent reassignment of Staff Sergeants to other work resulting in her working an unfair number of those shifts. The investigator concluded that the evidence established the worker was reassigned more than anyone else working the same day shift that she did, and the worker was subjected to differential and unequal treatment by the supervisor which treatment constituted discrimination on the basis of sex (pregnancy).
On January 23, 2016 the worker was working in the GDO with a Sergeant who was working an overtime shift. The Sergeant did not like the tone of the conversation she was having on the telephone and after she was finished the Sergeant told the worker she was a “power tripper”. The worker did not appreciate the comment, she was doing her job and told him if he had a problem he was invited to submit a report to her manager. When the worker’s supervisor came into the GDO, she told him what the Sergeant said to her and the response was the “Sergeant is a pretty smart guy, maybe he had a point.” The supervisor said that the worker did not report it as a serious concern and he was surprised it became an issue because to him it was a “collegial discussion.” The investigator found that the co-worker called the worker a “power-tripper” in the context of a work-related matter and the supervisor knew and undertook no follow-up action; however, while the comment was not appropriate, it does not rise to the level of harassment.
The worker sent the supervisor and e-mail on January 25, 2016 outlining how she had been unfairly assigned certain duties even though she was scheduled to be working a regular shift and she referenced a previous e-mail as support. The supervisor sent her an e-mail on January 26, 2016 outlining the rationale for staff reassignments. The investigator concluded that the supervisor duly discharged his managerial responsibility to act in all matters relating to this incident and the allegation was not supported by the evidence.
On January 29, 2016 the worker and another Staff Sergeant were on duty and the worker sent an e-mail to the supervisor asking who should be reassigned and the supervisor told them they can make such a decision. However, the worker told the supervisor that it was a conflict for two people of the same rank to assign duties to each other, so the supervisor assigned the worker. On February 4, 2016 after again assuming other duties, the worker sent an e-mail expressing concern about the inequitable distribution of work. The investigator found there was nothing untoward in the supervisor’s actions. There was no evidence of personal harassment.
The worker stated when she told her supervisor around the end of January 2016 of her intentions to file a WDHP complaint he immediately blocked her personal e-mail, he had previously blocked her text messages and notified the Administration about her intention to file a Human Rights complaint. On February 17, 2016 after she met with the WDHP Advisor she met with the supervisor and he told her she was a good worker but she did not “keep her head down and [leadership] did not like that”, which resulted in her becoming upset. The supervisor confirmed that those were his words, not specifically stated by leadership. The investigator concluded that the supervisor did not betray the worker’s trust by informing superiors about her Human Rights Application, it is a legal process that would impact on the employer; therefore, this did not constitute retaliation.
The worker stated that since she began the WDHP process the supervisor no longer said good morning to her. The investigator found that the supervisor did not refuse to say good morning. There was no finding of retaliation.
The worker claimed that the supervisor failed to provide relief for the worker on February 1 and 17, 2016. Her accommodations meant she left work at 4:00pm as opposed to 6:00pm and the balance of the shift needed to be covered. The supervisor told her she had to find her own relief; the worker was the shift supervisor and was responsible for filling vacancies when they arose. The investigator found that there was nothing untoward in the responses to the worker; and supervisor was responsible for finding relief for the worker. It was also found that there was no evidence to support the allegation that the supervisor failed to accommodate.
The worker indicated that on February 22 and 23, 2016 the worker was directed to write ORs for not performing other assigned work, which constituted personal harassment. The investigator found that the supervisor had nothing to do with requesting the OR on February 22, 2016 and it was within his managerial authority to request an OR from the worker on February 23, 2016 with respect to tardiness.
On February 26, 2016 the worker contacted the supervisor about an incident she had with another supervisor on February 24, 2016 which she alleged constituted harassment. Upon arriving at work that day she was not feeling well and was in the early stages of her pregnancy and she had Sergeants cover certain tasks. She heard that another supervisor had questioned why she sought coverage. She then told her supervisor she was being harassed because no one had previously questioned her about delegating tasks and she had the authority to do so. She also mentioned other issues she had with this supervisor and advised she was filing a WDHP complaint and asked that the supervisor be removed from supervising her pending investigation. She was told the supervisor was not going anywhere, but she could be provided with a transfer out of the institution. The supervisor could not recall the specifics and denied the specific comments. The investigator concluded that not removing the particular supervisor was made for operational reasons and the offer to transfer the worker was an attempt to address her unhappiness.
Another aspect of the February 24, 2016 event was investigated. After the supervisor questioned the Sergeant about why he was covering the worker’s tasks the supervisor relieved the Sergeant of their duties and reassigned a male Sergeant to the duties. The worker claimed that she had never had her authority to reassign work questioned. The investigator accepted that the supervisor had properly enquired into reassignment of worker’s tasks and accepted that the supervisor replaced the Sergeant that the worker assigned to someone with experience in the task. There was no discrimination based on sex and it was also concluded that there was no element of personal harassment in the supervisor’s actions.
The worker sought the supervisor’s help to rescind a Letter of Counsel she received on February 29, 2016. The worker stated that she had been asked by another supervisor to write an OR in relation to a staff reassignment issue that resulted in said Letter of Counsel and she felt she did not deserve the Letter and it should be rescinded. The investigator found that the supervisor did not enquire satisfactorily into the matter of the worker’s Letter of Counsel and did not undertake to look into whether or why the Letter of Counsel was given to two out of three Staff Sergeants. The investigator found there was a lack of follow-up by the supervisor and if an enquiry by the supervisor had uncovered inconsistency in administrative responses to a group of employees implicated in the same incident, that inconsistency could be held to constitute harassment; there is no question that placing a Letter of Counsel on an employee’s file could result in a negative or hostile work environment on the basis of harassment if that employee’s conduct or comments did not merit the Letter of Counsel.
With respect to the accommodation issue, the circumstances around a March 17, 2016 discussion and e-mail about updated accommodation and work reassignment were investigated. The supervisor had advised the worker not to contact the disability support person and took no independent review of the worker’s accommodation situation and simply requested more medical without reason. The investigator concluded that the supervisor’s comments and lack of proper follow-up constituted discrimination on the basis of sex (pregnancy) and failure to provide an appropriate accommodation for the worker’s pregnancy. The worker was treated differently than others in her group who required accommodation and it is this differential treatment that was discriminatory. As to the worker’s accommodation request for work reassignment the investigator concluded the supervisor comments and failure to follow-up on possible bundling of duties constituted discrimination on the basis of sex and failure to provide an appropriate accommodation short of undue hardship.
The worker has correctly indicated that there were additional events, which were not investigated; however, had the worker felt those events warranted investigation I would have expected them to have been included. Therefore, I have outlined the events upon which a proper and complete version of the circumstances can be assessed.
Assessment
First, I will place this appeal in its proper context. At the time of the events under consideration, the worker was employed as a Staff Sergeant, a position which is not considered to be a designated first responder occupation. However, the operating area identified that the worker had previously worked as a Correctional Officer and Operational Manager, prompting consideration to presumptive entitlement to benefits for first responders and other designated workers diagnosed with PTSD as outlined under policy 15-03-13.
The policy provides that if a first responder or other designated worker is diagnosed with PTSD by a psychiatrist or psychologist, and if certain criteria have been met, the PTSD is presumed to have arisen out of and in the course of the first responder's or other designated worker's employment, unless the contrary is shown. This is a rebuttal presumption, meaning there may be evidence which rebuts the presumption of work-relatedness.
It was determined that the worker met the employment and diagnostic criteria; however, the presumption was rebutted by virtue of the fact that the worker was not claiming that her mental stress was due to the employment exposures but rather due to workplace harassment while in the capacity of a Staff Sergeant. Thus, based on these circumstances presumptive entitlement is not in order.
The proper framework for assessing initial entitlement for mental stress injuries on the basis of the worker’s claim for workplace harassment is under the updated TMS policy and the CMS policy.
Both the updated TMS and CMS policies indicate that before adjudicating the claim, there must be a diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM) and in this case the worker’s diagnosis of PTSD by a psychologist satisfies the diagnostic requirements. The worker’s psychologist, Dr. Teehan, has provided a psychological assessment dated October 4, 2016 and reassessment of November 2, 2017 specifying a principal diagnosis of PTSD caused by mental stress from human rights violations against the worker at work.
With respect to the updated TMS policy dated January 2, 2018, the requirement for an ‘acute reaction’ has been removed; it is no longer required that the event be ‘sudden and unexpected’ and it provides a definition of workplace harassment. The updated policy states the following in part,
In all cases, the event(s) must arise out of and occur in the course of the employment, and be
clearly and precisely identifiable, and
objectively traumatic.
This means that the event(s)
can be established by the WSIB through information or knowledge of the event(s) provided by co-workers, supervisory staff, or others, and
is/are generally accepted as being traumatic.
Traumatic events include, but are not limited to
witnessing a fatality or a horrific accident
witnessing or being the object of an armed robbery
witnessing or being the object of a hostage-taking
being the object of physical violence
being the object of death threats
being the object of threats of physical violence where the worker believes the threats are serious and harmful to self or others (e.g., bomb threats or confronted with a weapon)
being the object of workplace harassment that includes physical violence or threats of physical violence (e.g., the escalation of verbal abuse into traumatic physical abuse), and
being the object of workplace harassment that includes being placed in a life-threatening or potentially life-threatening situation (e.g., tampering with safety equipment; causing the worker to do something dangerous).
The worker must have suffered or witnessed the work-related traumatic event(s) first hand, or heard the work-related traumatic event(s) first hand through direct contact with the traumatized individual(s), e.g., speaking with the victim(s) on the radio or telephone as the traumatic event(s) is/are occurring.
The policy defines workplace harassment as follows:
Workplace harassment occurs when a person or persons, while in the course of the employment, engage in a course of vexatious comment or conduct against a worker, including bullying, that is known or ought reasonably to be known to be unwelcome.
Therefore, in order to consider entitlement to TMS there must be an identifiable event that occurred, which could include witnessing a fatality or horrific accident, or being the object of workplace harassment. The policy also requires that the event that is claimed to have caused the traumatic mental stress must be objectively traumatic. There must also be a diagnosis in accordance with the DSM. Consequently, I find that this particular case does not meet all the requirements as outlined under the policy.
As detailed earlier in the decision, the worker raised numerous events, which she alleges are discriminatory or harassing. However, I have considered all of the events and based on the circumstances of the events, I find that the majority are not necessarily clearly and precisely identifiable, but are better described as situations and circumstances.
The policy also requires that the event be objectively traumatic and it is in this regard when considering the average person’s perception of the event, that I cannot qualify any of the events outlined earlier in the decision as being objectively traumatic in accordance with the intent of the policy. There is no evidence to suggest that any of the interactions or situations resonate as being violent or threatening. Further, while the policy references workplace harassment, it is again within the context of a clearly and precisely identifiable and objectively traumatic event.
Therefore, while the worker meets the diagnostic requirements noting she has been formally diagnosed with PTSD by a psychologist, the other requirements as set out in the policy are not met and entitlement to TMS is not in order.
I will now consider entitlement to CMS. For purposes of this policy the definition of workplace harassment is the same as the TMS policy.
Policy 15-03-14 – CMS states the following in part,
A worker will generally be entitled to benefits for chronic mental stress if an appropriately diagnosed mental stress injury is caused by a substantial work-related stressor arising out of and in the course of the worker’s employment.
The policy outlines a substantial work-related stressor as follows,
A work-related stressor will generally be considered substantial if it is excessive in intensity and/or duration in comparison to the normal pressures and tensions experienced by workers in similar circumstances.
Workplace harassmentwill generally be considered a substantial work-related stressor.
And,
In all cases, the WSIB decision-maker must be satisfied, on a balance of probabilities, that the substantial work-related stressor
arose out of and in the course of the worker’s employment, and
was the predominant cause of an appropriately diagnosed mental stress injury.
For the purposes of this policy, “predominant cause” means that the substantial work-related stressor is the primary or main cause of the mental stress injury—as compared to all of the other individual stressors. Therefore, the substantial work-related stressor can still be considered the predominant cause of the mental stress injury even though it may be outweighed by all of the other stressors, when combined.
The policy goes on to state,
Interpersonal conflicts between workers and their supervisors, co-workers or customers are generally considered to be a typical feature of normal employment. Consequently, such interpersonal conflicts are not generally considered to be a substantial work-related stressor, unless the conflict
amounts to workplace harassment, or
results in conduct that a reasonable person would perceive as egregious or abusive.
And,
There is no entitlement for CMS caused by an employer’s decisions or actions that are part of the employment function, such as:
terminations
demotions
transfers
discipline
changes in working hours, or
changes in productivity expectations.
However, workers may be entitled to benefits for chronic mental stress due to an employer’s decisions or actions that are not part of the employment function, such as
workplace harassment, or
conduct that a reasonable person would perceive as egregious or abusive.
Therefore, in order to consider entitlement to CMS, the worker must have experienced one or more substantial work-related stressors. The work-related stressor must be the predominant cause of the appropriately diagnosed mental stress injury, and there must also be a diagnosis in accordance with the DSM. I find that this case does not meet all the requirements as outlined under the policy.
First, I will outline the events, which I consider constitute normal decisions and actions stemming from the employment function. While the worker felt she was being denied developmental opportunities from February 2015 to November 2015, her superior was not apprised of her interests and the investigator confirmed there was no inappropriate treatment. Similarly, a review of the circumstances surrounding the worker’s request to take a course on October 30, 2015 revealed that the worker actually delayed in seeking approval in the first place and there was confusion as to who was responsible with respect to providing her permission. The male staff member who had been provided permission was a direct report of the supervisor.
I find it is completely reasonable to consider and discuss the cost of taking a course. With respect to the worker’s requests for vacation in December 2015, I acknowledge she initially did not receive a reply and was approved for one of three days. However, the supervisor dealt with all the vacation requests as expeditiously as possible in accordance with normal operational requirements and seniority.
Turning to the issues surrounding the worker’s accommodations during her pregnancy, I acknowledge as was confirmed by the investigator that the worker faced delays and difficulties in terms of the accommodations being implemented. I appreciate her frustration and the additional stress this placed on her. However, accommodations involve changes to the work and the policy is clear that there is no entitlement for CMS caused by an employer’s decisions or actions that are part of the employment function. Similarly, the January 19, 2016 directive and the unfair reassignment of work fall under the purview of the employment function. Further, it must be understood that while the investigator identified breaches, the investigation and WDHP Policy involved a much broader scope and mandate than what is contemplated in the CMS policy.
Additional events that are considered to be decisions or actions that are part of the employment function include, the worker’s concerns as expressed in a January 25, 2016 email about the unfair assignment of certain duties; the circumstances on January 29, 2016 when the worker felt it was a conflict for two people of the same rank to assign duties to each other, resulting in the supervisor assigning the work to her; and the February 4, 2016 concern about the inequitable distribution of work. Further, the worker’s responsibility to find coverage for herself on February 1 and 17, 2016 was reasonable noting the worker was the shift supervisor and was responsible for filling vacancies.
The worker felt that being directed to write ORs on February 22 and 23, 2016 for not performing other assigned work and tardiness constituted personal harassment; however, discipline is part of the employment function and managerial authority. The worker also felt that an incident she had with another supervisor on February 24, 2016 constituted harassment, because no one had previously questioned her about delegating tasks and she had the authority to do so, and she requested that supervisor be removed from supervising her pending investigation. However, these are situations that arise in the normal course of work and involve operational decisions and actions. The fact that she was offered a transfer was an option to assist her.
With respect to the worker’s request to rescind a Letter of Counsel she received on February 29, 2016, I acknowledge that the worker highlighted that the investigator indicated that there was a lack of follow-up by the supervisor and if an enquiry had uncovered inconsistency in Administrative responses to a group of employees implicated in the same incident, that inconsistency could be held to constitute harassment. However, the issue for purposes of this decision is not whether the worker was deserving of the letter or if the employer’s decisions and actions were consistent on this issue. This situation still falls within the context of the employment function.
Next, I will discuss the events that I find to be more interpersonal in nature and do not constitute workplace harassment or conduct that a reasonable person would perceive as egregious or abusive. During a November 18, 2015 e-mail exchange with her supervisor in which the worker questioned why she and other Staff Sergeants were not offered the developmental opportunity of open Deputy Operations positions, the exchange shifted to the supervisor indicating it was unfortunate the worker felt that way, and he would stop sticking up for her when colleagues go off about her work. I acknowledge that the investigator indicated that a superior must put gossip and innuendo to rest and the supervisor’s participation in such talk rises to the level of condonation of a poisoned work environment. However, again the investigation and WDHP
Policy involved a much broader scope and mandate than what is contemplated in the CMS policy. In considering the circumstances, I find the supervisor indicated that he defended the worker and there is no indication that the comments were vexatious.
In November 2015 during her PRA, the worker wrote in the employee comments section “Character is what you do when no one is looking.” The worker stated that in response her supervisor commented, “My inside voice would ask you if you are illiterate.” The investigator accepted that the supervisor made the comment, but the supervisor did not confirm making the comment, he indicated he could not recall the comment. The investigator indicated the comment was unnecessary and mean spirited and did go as far as to indicate it was significant enough to warrant it being characterized as harassment. However, I find this one comment was made within the course of a discussion about the worker’s PRA and while it was inappropriate and a poor choice of words for seeking clarification on what the worker had written, it does not rise to a level of abuse. Further, on January 23, 2016 the worker was called a ‘power tripper’ by a Sergeant who did not like the tone of the conversation she was having on the telephone and the worker didn’t appreciate the comment. Again, this comment may have been inappropriate, but is not vexatious and it was said in relation to a work-related matter.
Further, the worker had an interaction on November 14, 2015 after which she submitted an OR which outlined hostile and inappropriate comments made to her by a Sergeant while on duty. The Sergeant told the worker in an elevated tone that he would not be cross-referencing the nominal sheet to the canteen order forms and stated “you are a micro-manager, you have all the rules. No one else on the desk does this and you should check with your partners because they do not do that”. He then pointed his fingers at her and continued “same thing you sent me [an] e-mail asking me to do this whatever, you are getting on my last nerve now.” I find the manner in which she was spoken to inappropriate and elevated in tone; however, disagreements and conflicts between supervisors and subordinates are not unexpected. The issue was over a work-related matter and I do not find it rises to the level of being egregious or abusive.
Finally, when the worker told her supervisor around the end of January 2016 of her intentions to file a WDHP complaint he immediately blocked her personal e-mail, he had previously blocked her text messages and notified the Administration about her intention to file a Human Rights complaint. Then on February 17, 2016 the supervisor made a comment that she was a good worker but she did not “keep her head down and [leadership] did not like that”. This upset her and she felt betrayed. However, there was no indication of any conflict; he was not harassing or bullying her and it was not inappropriate for him to advise the Administration. Further, the worker’s claim that since she began the WDHP process the supervisor no longer said good morning to her was unsubstantiated. There was no retribution.
Having considered all the events, none of the events described meet the criteria of a substantial work-related stressor. Consequently, it is not necessary to address the question of predominant cause. Therefore, while the worker meets the diagnostic requirements noting she has been formally diagnosed with PTSD by a psychologist, the other requirements as set out in the policy have not been met and entitlement to CMS is not in order.
CONCLUSION
I conclude that the worker does not have initial entitlement for a mental stress injury.
The decisions denying entitlement to Traumatic Mental Stress; presumptive entitlement to Posttraumatic Stress Disorder in First Responders and Other Designated Workers; and entitlement to Chronic Mental Stress are confirmed.
The worker’s objection is denied.
DATED October 23, 2018
M. Kimevski
Appeals Resolution Officer
Appeals Services Division