Worker v. Employer, 2019 CanLII 121589

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20190111

OBJECTING PARTY: Worker

REPRESENTED by: Worker Representative

RESPONDENT: Employer

REPRESENTED by: Self

HEARING: Hearing in Writing

HEARD by: C. da Cunha, Appeals Resolution Officer

DATED: November 26, 2019

ISSUE

The worker objects to the Case Manager’s (CM) decisions of July 24, 2018 and January 16, 2019. She seeks initial entitlement to a post-traumatic stress disorder (PTSD) and a major depressive disorder (MDD) under the Workplace Safety and Insurance Board’s (WSIB) chronic mental stress (CMS) policy or its traumatic mental stress (TMS) policy.

BACKGROUND

On March 1, 2018, the worker completed a Worker’s Report of Injury/Disease (Form 6). In the document, she claimed entitlement to work-related CMS arising out of an approximately seven-year history of sexual harassment directed at her by the Production Manager, ending with a verbal threat of rape on December 19, 2017. The record shows that the worker first sought medical/mental health attention with her family physician, Dr. G. Pizzuti, on January 18, 2018. She was 56 years of age on this date, and had worked with the employer as a General Labourer on an auto parts manufacturing production line for over 27 years.

The CM’s Decisions

The CM obtained statements and documentation from the workplace parties, and signed witness statements from the worker. After reviewing this evidence, along with the medical record, on July 24, 2018, the CM denied entitlement under the CMS policy. The CM found that:

• The witnesses did not have any direct knowledge (i.e. seeing or hearing) of any harassment perpetrated against the worker by the Production Manager;
• The employer’s investigation resolution, which the worker signed, did not find that harassment had occurred; and,
• While the CM understood that the worker’s interactions with the Production Manager were unwelcome and upsetting, they did not meet the necessary threshold of being vexatious, abusive or egregious.

The worker objected to this decision and requested consideration of entitlement under the TMS policy.

On January 16, 2019, the CM upheld the original decision to deny entitlement under the CMS policy. The CM also denied entitlement under the TMS policy, finding that the evidence did not support that an objectively traumatic work-related event had occurred.

The Worker’s Position

In the Intent to Object Form dated August 27, 2018, the worker’s previous representative argued that she is entitled to either TMS or CMS for the following reasons:

• The WSIB placed undue weight on the employer’s January 17, 2018 Joint Committee Investigation Report (JCIR). With respect to this document:
  • The Joint Committee (JC) totally disregarded the worker’s evidence detailing the threat of rape.
  • The JCIR does not disclose who, if anyone, was interviewed or what they said.
  • There are no statements on record from the employer or Production Manager denying the allegations.
  • The worker was not party to making the report. It is, at best, an agreement between the employer and the union.
  • The worker requested the opportunity to seek independent legal advice before signing the resolution, but the employer denied her request.
  • The worker signed the JCIR resolution under duress. She disagreed with, and vigorously protested, its conclusion. She broke down and signed the document under the threat of losing her job.
  • The JC reached the factual conclusion that there was a probability that inappropriate comments were made. However, there was no direct, supporting proof with respect to specific dates, times, or incidents.
• The WSIB improperly weighed the evidence using “beyond a reasonable doubt” as the standard of proof, when it should have determined the matter “on the balance of probabilities”.
• The Ontario Human Rights Commission (OHRC) has advised that sexual harassment does not often occur in full public view and there are often no witnesses or material evidence. It adds that a person who is the target of harassment may be in a vulnerable position and afraid to speak out. Therefore, issues of credibility often arise in these cases. However, the worker identified December 19, 2017 as the date that the Production Manager made the threat of rape, and she repeatedly complained about the harassment to her union over the years, to no avail.
• While there are no direct witnesses to the Production Manager’s verbal harassment over the years, there are numerous witnesses to his frequent and inexplicable attendances at the worker’s station. The plant is a very noisy environment, and the worker’s station was isolated, some distance from her co-workers on the floor, beyond their ability to overhear, but not out of their line of sight.
• These witnesses confirmed that the worker complained to them many times about Production Manager.
• The medical evidence confirms a causal link between the workers’ PTSD and her being the victim of sexual harassment, with the resulting need to remove all exposure to the Production Manager.
• There is no evidence that the worker suffered from a history of psychological or emotional difficulties.
• The WSIB did not consider the emotional and psychological impact on the worker of the cumulative effect of years of harassment, culminating in the threat of rape, at the hands of the Production Manager.

The Employer’s Position

The employer contends that the claim should remain denied for the following reasons:

• The worker accused the Production Manager of sexual harassment as a result of her angry reaction to being denied three days of vacation leave from January 3, 2018 to January 5, 2018, inclusive. She was under the mistaken impression that the Production Manager was the one who denied her request. But for this angry reaction to an employment decision, her accusations would not have surfaced.
• The worker admitted that she never told the Production Manager to stop.
• Except for the threat of rape accusation, which was unsubstantiated, all of the allegations occurred prior to 2017.
• The worker is not a credible witness. She stated three times that she did not want to pursue a complaint against the Production Manager, but preferred to wait until she retired to “blast” him. Her position contravenes the training provided to her and all workers of the employer regarding sexual harassment, and calls into question whether the comments between her and the Production Manager over the years were harassing in nature.
• The worker received training from the employer regarding workplace harassment and the need to immediately report such occurrences. However, she did not do so.
• The witnesses and the union confirmed that they advised the worker, on more than one occasion, to report the Production Manager if she felt he was behaving inappropriately. However, she did not do so. Furthermore, none of the witnesses saw or heard any improper behaviour by the Production Manager towards her. They only knew what the worker told them.
• If the worker felt she could not report the Production Manager’s alleged behaviour to the employer, she could have reported it to the Ministry of Labour, the OHRC, the union, and/or the police, but did not do so. She could also have filed a confidential complaint through xxx, a third party contracted by the employer to provide a continuous, confidential complaint processing service for its labour force. She did not do so.
• The union represented the worker during the investigation, and she was under no obligation to sign the resolution. At no time did she notify the employer that she was dissatisfied with the outcome. Furthermore, one of the members of the JC was the Human Rights Officer, who is trained in conducting harassment investigations.
• The JCIR confirms that the Production Manager denied the worker’s allegations.
• While the JC found that the Production Manager probably made some inappropriate comments to the worker, the findings did not support a contravention of Section 32.0.7 (1) (a) of the Occupational Health and Safety Act (OHSA).
• The worker has an adult daughter who has worked at the same plant since 2013. A reasonable person might question why this fact is missing from the medical record, noting that the worker is someone who reports being uncomfortable around the Production Manager due to years of abuse, yet knows that her daughter also works with this same Production Manager in the same plant.
• The worker’s health care providers may have reached different conclusions had they been provided with all of these facts.

AUTHORITY

Operational Policies

15-03-02 TMS (in effect as of January 1, 2018) 15-03-14 CMS

ANALYSIS

I have carefully considered all of the available information and appropriate operational policies in reaching this decision. Having done so, I find that initial entitlement to a PTSD and a MDD under the WSIB’s CMS policy is in order. There is no entitlement under the TMS policy.

The History of Sexual Harassment:

The worker essentially claims an approximately five to seven-year history of pervasive sexual harassment by the Production Manager, ending in a verbal threat of rape on December 19, 2017. The accident history is detailed in the following documentation on record.

On January 15, 1018, Union Representative 1, the worker’s direct supervisor, provided the following signed statement, in part:

On January 15, 2018, I approached the worker to discuss a procedure regarding paperwork & recording production. This issue with paperwork was discussed with every member in the xxx area. I asked the worker how she was feeling and if everything was alright because she missed 4 days prior to the layoff week. She told me everything about her mother being sick and having to burn sick days. She said she tried to call HR and she could not get a hold of anyone. She told me the Production Manager was aware of her mother's situation but was not allowing her to take a leave with permission. She said, "that the Production Manager was a horrible person and that he never understands anyone". She then said, "I am sick and tired of him looking down my shirt and asking me to see my tits", I told her to stay calm and relax. She then said, “he (the Production Manager) always asked me to take off my jacket and to see what shirt I was wearing that day." Then she said, "I am gonna put a harassment charge against him for being a pervert and asshole." She also said that "working here is a living hell because of him". I tried calming her down but she was worked up, I told her lets focus on our jobs and to not let the Production Manager get to you. She then said "I am gonna set him up by recording him on my phone to prove to you that he is an asshole". I told her that was not a good idea and if there is an issue you should take it up with HR and the union. She then said, “Union Representative 1, this has been going on for years and I am fed up with the bull shit." I told the worker I know that the Production Manager jokes around with everyone but are you sure it’s this bad? She said its "100x worse". Another thing is that the worker attracts attention because her clothing apparel is very low cut and see through. She does wear very tight pants at times just for the record. The worker at times would flirt with the Production Manager and that was maybe giving him the green light to continue. I never seen any touching or contact of any sort for the record. After our conversation I told her to remain calm and continue to do her job and stay focused.

As a result of this complaint to her direct supervisor, the employer met with the worker, Union Representative 2, and Union Representative 1 later that day. In her signed notes, Union Representative 2 wrote, in part:

The worker was asked to come to HR after I received a call from Union Representative 1 outlining that the worker made allegations against the Production Manager regarding sexual harassment.

When the worker came into my office I asked her what was going on. She informed me that she was upset because the Production Manager denied her three vacation days last week before her layoff. I informed her that we did not receive a formal request and that given the last minute notice it was denied. I then asked her what she said to Union Representative 1 while out on the shop floor. She became upset and asked Union Representative 1 why he said something to me. I informed her that Union Representative 1 had an obligation to bring forward what was brought to him. She did not respond and began to cry. I then asked again what was going on. She informed me that the Production Manager has been sexually harassing her for years. That he comes to see her at her work station a lot and that he makes comments about her breasts. She outlined that she should have come forward sooner but did not and does not know why. She said she was tired of what was going on and when he denied her vacation it made her upset so she let it slip to Union Representative 1.

From 8:40 PM to 9:25 PM on January 15, 2018, the worker wrote and signed the following statement for the union:

Approximately 5 years, possibly more started.

• People you confided in:
  • Union Representative 3, Co-worker 1, Husband, Co-worker 2, Co-worker 3, Co-worker 4, and Co-worker 5.
• Comments on almost daily basis.
• Jan 15/18, “Happy New Year, what’s with the coat”? Then asked “What’s with name brand xxx coat crest?” which is a crest on my shop coat stitched on my breast (left side). I replied “that the crest stitched on the other side is “xxx” and that is my husband which I pointed to it, stitched on my coat on the other breast (right side)
• Comments daily include:
  • “How hot you are”
  • “Undo coat and let me check those babies out”
  • “Let me see those” – looking at my chest
  • “They look real good” – looking at my chest
  • “Are those new pants?”
  • “I don’t see any lines, are you wearing underpants?” – sometimes tries to guess the colour of my underpants
  • Approximately 1 year ago:
  • “I can’t control myself and want to kiss you all over, especially down there” – Actually apologized for that comment and said it wouldn’t happen again and he went too far. Then asked why I turned red and did I embarrass you?
• Tells me he’s in love with me and wants a little bit of that.
• I told the Production Manager recently that an employee said that we (the Production Manager and myself) were having an affair, his response was “Well, let Co-worker 6 make it true.”
• If the Production Manager is off at all, upon returning will always ask if I missed him. I always replied “Typical male pig” – only due to the constant comments from him.
• When the RT rear cell was here, the Production Manager came up to me and put his hand on the V part of my top and pulled down. I smacked his hand. He has never done that again.
• Told me one day that he was the boss and he would let Co-worker 7 know I was needed and “we” could get out of here.
• Multiple times rubs his hand along the side of my leg.
• Can be seen wherever I am working that he waits my station on a daily basis. Why do you think this happens?
• There are many more comments but these are the ones that come to mind but there are many more.

On January 16, 2018 at 10:30 AM, the Human Rights Officer, the Union Vice-Chair, the Human Resources Director, and the Human Resources Manager, met with the worker. The Human Resources Manager noted the following, in part:

The worker: Informed us that this has been going on for 5 years. She doesn't know why she hasn't said anything and if Union Representative 1 didn't yesterday she wouldn't. She felt it may be her fault maybe that's why she hasn't said anything. She had gastric bypass and when she lost weight and felt good about herself and changing her clothes the Production Manager started noticing. She noticed that the Production Manager would make comments to her and these comments continued. After she lost weight she got her breasts done and that's when the comments started all the time. The Production Manager would ask "can we see them?" She feels she got them done so maybe it's her fault that now they are there to look at. She told her husband every day that it's still happening. Her husband advised her to get a recorder. But she informed him she wasn't because she heard that the Production Manager could take legal action. She decided she would deal with it. She takes a lot of time off of work so she doesn't see him. She tries to ignore him but he stands where she's at and makes comments to her. The worker informed us she called a lawyer yesterday and the lawyer advised her to keep jotting items down. She wrote items down yesterday per lawyers advice. The Production Manager would ask if she has time for him and she would tell him she's too busy.

Human Rights Officer: When he's making these comments are people around?

The worker: No, people may not hear him but people see him there. She has told Co-worker 1 to come to her station when she sees him there. When Co-worker 1 would come up to the job the Production Manager would leave. She drives Co-worker 1 home so that the Production Manager will not follow her to the car. At Christmas time she left early and the Production Manager found out she was leaving early on Dec 22 and the Production Manager said while she was at xxx area "so tomorrow is your last day I’m going to rape you tomorrow". She said it was supposedly joking. The next day she did not see him.

Human Rights Officer: Did you tell anyone this?

The worker: I mentioned this to Co-worker 1 on our way home.

HR Director: You didn't say this to anyone else that is a very serious statement.

The worker: No, like I said it did seem like he was joking at the time.

The HR Manager added, in part:

The worker: he always asked to remove my coat to see my ass and breasts. He would ask why I am wearing a coat. This happens every day. He would brush against her. Before Christmas was the last time. Told me that he was in love with me. Always looking at me up and down asking me wear my panty lines are. Tomorrow can you wear something sexy? Tells me I am hot and that he can't stay away from me. Then he asked am I bad. I never know what to say to him and that I would never fool around on my husband as he's my best friend. He said he could make me happy.

Human Rights Officer: What can we do to resolve this right now since the last behaviour was before Christmas?

The worker: the last behaviour was yesterday. I was wearing a name brand xxx coat and he said why is that coat on. I'm sure he would have come up more often but then I got pulled in the office. I was scared to come forward but Union Representative 1 doing that yesterday was a relief.

The worker initially consulted Dr. N. Chevalier, Psychologist, on January 24, 2018. In a report dated May 31, 2018, Dr. Chevalier provided the following accident history, as reported by the worker:

The worker is a 56-year young, married (37 years) woman, with 3 adult children and she also has custody of her grand-daughter (age 9). She has been employed at Company xxx for the past 29 years with no reported problems.

And this information is valuable, the worker had gastric bypass surgery in 2011 and she lost a significant amount of weight and then she had a breast reduction surgery in 2013.

The worker reports that on January 15, 2018 she disclosed to her Union Representative 1 about her being a victim of sexual harassment by the Production Manager for the past 5 years and the last statement he made to her, “I’m going to rape you” was on her last day of work before the Christmas holidays in 2017. Union Representative 1 immediately went to the Human Resources Department (HRD) and he reported her case. After reporting it, she was informed that she could go home, which she did with pay for two days.

For the past five years, the Production Manager had apparently been making unwelcomed advances, mostly through verbal offensive and indecent comments and, at times, accompanied with hand gestures of a sexual nature to the worker.

In an attachment to her Form 6 dated March 1, 2018, the worker wrote the following, in part:

This has been going on for a long time. It has been approximately 7 years, however, I cannot pinpoint the exact date.

The Production Manager is my immediate supervisor, and he would stop at my station many times through the day, which was not necessary. Unfortunately, however, no one could hear what he was saying to me, but there are many witnesses that saw the Production Manager at my station all day long.

The Production Manager said things like: "Take off your shop coat so I can see your ass and breasts." Then he would proceed to tell me how much he liked my boobs and ass; how much he wanted me. (Side note, I DID NOT take my shop coat off for him.) I wore my shop coat even in extreme hot temperatures inside because of the Production Manager's remarks and how uncomfortable he made me feel.

Other things he said were, "Got time for me? Take your coat off... why is your coat still on?" This would happen on a regular basis. He would brush up against me and tell me he was in love with me; always looking me up and down and ask me where my panty lines were. He would always tell me when he saw I was wearing a new pair of pants how much he liked them on me, and asked me to wear something sexy because "you're so hot and I can't stay away from you."

I never knew what to say to him and I always told him I didn't have time for him and to stay away. I would never fool around on my husband; he's my best friend. The Production Manager said he could make me happy to which I responded I am already happy.

The last day of work for me in December (before the Christmas Holidays) was Dec. 20^th. On December 19th, the Production Manager told me that on my last day of work in 2017 he was going to rape me.

On March 27, 2018, the CM spoke with the worker and noted the following, in part:

IW (injured worker) said that she has been harassed by her Production Manager for the past 7 years. IW said that she works on a line and the Production Manager is always making excuses to stop by her. IW said she wears her coat even in the summer as protection. She said that the Production Manager has pulled on her coat and made comments about her breasts etcetera.

IW said that just prior to Christmas 2017 she took two prior days off as everyone lines up to give one another a hug and she did not want to hug the Production Manager. IW said that final event was on Dec 20, 2017 when the Production Manager advised he would rape her. IW did not contact the police but did tell her husband.

CMS

As per operational policy 15-03-14, CMS, a worker will generally be entitled to benefits under this policy if all of the following four criteria are met:

1. The diagnostic test has been met;
2. The worker suffered a substantial work-related stressor;
3. The substantial work-related stressor arose out of and in the course of employment; and,
4. The substantial work-related stressor was the predominant cause of the diagnosed condition.

Has the Diagnostic Test Been Met?

Yes.

Diagnoses:

• Adjustment disorder, acute stress, and PTSD (Dr. Pizzuti, January 18, 2018, February 28, 2018, March 7, 2018, March 30, 2018, May 26, 2018, and September 14, 2018).
• Anxiety, depression, and PTSD (Dr. Chevalier, Psychologist, March 8, 2108, and May 31, 2018).
• Adjustment disorder, with anxiety (Dr. J. Dennison, General Practitioner, August 31, 2018).
• PTSD and MDD, (Dr. P. Montaleone, Psychiatrist, September 26, 2018).

This is the worker’s diagnostic history, as per the record. Between January and September 2018, she sought mental health attention with her family doctors, a psychologist, and a psychiatrist. On September 26, 2018, Dr. Montaleone, Psychiatrist, diagnosed her with a PTSD and a MDD. These diagnoses are in accordance with the Diagnostic and Statistical Manual of Mental Disorders. Therefore, the diagnostic criteria is met.

Did the Worker Suffer a Substantial Work-Related Stressor?

Yes.

The CMS policy prescribes that 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. It confirms that workplace harassment will generally be considered a substantial work-related stressor. The CMS policy adds that workplace harassment occurs when a person, while in the course of the employment, engages in a course of vexatious comment or conduct against another worker, including bullying, that is known or ought reasonably to be known to be unwelcome. WSIB policy does not define the meaning of “vexatious” for its purposes. However, the Oxford dictionary (https://en.oxforddictionaries.com/) defines it as an act causing or tending to cause annoyance, frustration, or worry. The Merriam-Webster dictionary (https://www.merriam-webster.com/) defines it as an act that is distressing or intended to harass.

The worker’s allegations, if the evidence supports they occurred, constitute workplace harassment as defined and intended by WSIB operational policy 15-03-14, CMS. The Production Manager’s behaviour, as alleged and described by the worker, is egregious and abusive. However, when one takes into account the power imbalance in their employment relationship, the alleged behaviour becomes more than that; it is oppressive, degrading, and dehumanizing. The dispute, and the question to be resolved, lies in whether the evidentiary burden required to show that the alleged behaviour occurred has been met.

In relation to this question, the CMS policy states that, in order to consider entitlement for CMS, the WSIB decision-maker must be able to identify the event(s) which are alleged to have caused the CMS. This means that the event(s) can be confirmed by the WSIB decision-maker through information or knowledge provided by co-workers, supervisory staff, or others. Contrary to the WSIB’s initial decision, there is no requirement under the CMS policy that this knowledge must be first-hand and direct, nor that the specific dates of the events must be identified by the claimant. In fact, in setting the threshold for the evidentiary burden, the policy does so based on the “balance of probabilities”. This means that it must be established that the alleged course of workplace harassment more probably than not occurred, based on the real merits and justice of the claim. Having reviewed the case record, I find that this threshold has been met for the following reasons:

• In its own investigatory conclusion, the employer acknowledged that there was a probability that inappropriate comments were made.
• Noting the nature of the allegations (i.e. verbal and surreptitious sexual harassment in a relatively isolated part of a large plant under noisy conditions), it is not likely that direct eyewitnesses would exist. Therefore, the fact that direct eyewitnesses do not exist cannot automatically result in the denial of the claim. One must look at the totality of the available evidence and decide the case on a balance of probabilities based on the real merits and justice of those facts and circumstances.
• On January 16, 2018, at 12:35 PM, the employer spoke with Co-worker 1. The employer’s notes state the following, in part:

Human Rights Officer: Advised we are in the middle of investigation, do you know why you are here.

Co-worker 1: I kind of have an idea - it's to do with the worker. All I know is that yesterday she was upset and was crying. She told me yesterday that it was to do with harassment to do with the Production Manager.

Human Rights Officer: Is this the first time she's talked to you about this.

Co-worker 1: She has a few times.

Human Rights Officer: What has she said? Advised about confidentiality and that we are taking notes so we come to a resolution.

Co-worker 1: I will tell you what I know but it's not a lot. She drives me home and we have been friends so she has talked to me on several occasions about how he's said some improper things and how she has felt uncomfortable. I have never heard the conversations. Just have seen them talking.

Human Rights Officer: After they have talked she has said anything to you?

Co-worker 1: Just on the way home. She has said that he has made remarks about her and the way she looks. Human Rights Officer: Referring to her body?

Co-worker 1: Yes. It has been a while since we have last talked about it. She was off a few days.

Human Rights Officer: Did anything happen right before Christmas that she has talked to you about?

Co-worker 1: No nothing.

HR Director: Is there anything that sticks out from that time?

Co-worker 1: No the last thing I remember was from maybe the beginning of December.

Human Rights Officer: Have you ever given her any advice?

Co-worker 1: She's brought up talking to someone but and I have advised her that if it makes her feel better maybe she should.

Human Rights Officer: Did she say she ever talked to anyone about it.

Co-worker 1: No. I do not remember specific things. Just that we have talked about it during our drive, the Production Manager talks to everyone in the plant.

Human Rights Officer: Do the Production Manager and the worker talk a lot.

Co-worker 1: I don't see them talking a lot - If she is working in quality I have seen them talking here and there. She has mentioned things after the fact on our way home. Like I said the Production Manager talks to everyone.

Human Rights Officer: Have you heard anything out in the plant? How did you know what we were talking about today?

Co-worker 1: The worker mentioned it to me yesterday before she left.

Co-worker 1 confirmed that the worker had complained to her on several occasions, most recently in early December 2017, about the Production Manager’s improper comments to her about her appearance, and how they made her uncomfortable.

• The worker’s union representative, Union Representative 3, provided a signed statement on June 15, 2018, confirming that she made numerous complaints to him over the years about the Production Manager’s inappropriate behaviour and comments towards her. He also confirmed that he witnessed the Production Manager in the worker’s presence more often than required. He wrote:

The worker has approached me numerous times over the past few years about inappropriate behaviour and comments made to her from the Production Manager.

I always advised her that a report can be made to stop it happening. She always replied that it has been going on for so long that she just tries to ignore it as well as she is afraid of what could happen:

• People believe her or not
• Work situation as the Production Manager is her boss
• Worried about other unknowns

I never heard any comments allegedly made to the worker but did see the Production Manager come over to where the worker would be working and speak to her more often than he should. While working alongside the worker, she would say to me “watch how many times the Production Manager comes over to me.” She would then come over to me and tell me what he said to her. I did let her know that she may need proof of what he says to the worker to file a report. I also suggested that she put her cell phone on record to catch the Production Manager making inappropriate comments. The worker said she was nervous about it in case she got caught recording the Production Manager.

• The worker provided signed, dated statements from four co-workers corroborating her allegations. The statements are as follows:
• Co-worker 8 – March 28, 2018:
  1. I on numerous occasions saw the Production Manager hanging around the worker, in what I have come to call “The Production Manager is on the hunt mode”, I saw him pull on her shop coat, when he saw me watching he turned and walked away.
• Co-worker 1 – March 27, 2018:
  1. I have known the worker for over twenty five (25) years. We work in the same Company xxx plant. For the last three or four years she has been driving me home. We were always at the punch clock together and walked out together. We are long-time friends.
  2. I know the Production Manager. He also works at the same Company xxx plant in the position of supervisor in charge of other supervisors. He is in a position over the worker.
  3. I noticed that the Production Manager would go around the worker once or twice a day when I worked in the same area as her. I could not hear what was said between them.
  4. Once or twice a week as we drove home the worker complained to me that the Production Manager would make sexual comments to her. I noticed that she would not remove her shop coat even on hot days. She told me it was because of the Production Manager that she felt uncomfortable taking it off. It was upsetting to her. She was afraid of the consequences if she went and complained to someone. I am not the only person to whom the worker confided regarding the Production Manager's behavior toward her; she told me this.
  5. About a year ago we had a company-wide meeting about sexual harassment.
• Co-worker 9 Talbot – March 27, 2018:
  • I have known the worker for almost 20 years. We met through work at Company xxx at xxx address. I have been employed there for almost 20 years. We are friends.
  • I am a jitney driver so I would see her 20 or more times day. I travel all over the plant. The worker usually works in the xxx line.
  • The Production Manager is our production manager at work. I have seen the Production Manager talking to the worker a lot, more than he talks to other female employees. I am never in a position to hear what he says to her.
  • The worker has told me some of the things he says to her. These conversations took place in the plant. My impression is that the things he says to her make her uncomfortable. She says that his comments had sexual implications.
  • Two years ago I asked the worker whether she would like me to go to Human Resources and tell them what was going on with regard to the Production Manager and she said at that time, “No. I can handle it.” Still she continued to complain to me about him.
  • I have noticed that wherever the worker is working in the plant, the Production Manager hangs around in that area. I noticed this particularly when she was doing quality control.
  • My understanding from other women in the plant is that the Production Manager has been told to stay away from women in the plant. He is still doing the same job. To me he seems less outgoing.
• Co-worker 2 – August 7, 2018 (typed statement): I, Co-worker 2 (age 48) reside in the Town of xxx in the County of xxx. I have been employed at Company xxx at xxx address, for 2 ½ years. I say as follows:
  1. I know both the Production Manager and the worker (hereinafter “the worker”), a general laborer.
  2. In December of 2017 just before the summer shut-down, I have witnessed the Production Manager attend at the worker’s work station xxx, more frequently than any other persons. I was working at xxx, one machine over from the worker’s work station, 15 – 20 feet away. I wanted to talk to the worker about a part because she is part-time quality control. When I got to her station, the Production Manager walked away.
  3. In or about July, 2017, I was talking to the Production Manager near the shipping area office. I was talking to him about the summer shut down. He answered my question and then he started talking about the worker having had a procedure on her “breasts”. His facial expression suggested he liked it. Another co-worker was present as well.
  4. During my time at Company xxx I was approached by a few people telling me that the Production Manager and the worker were having an affair. I decided to go straight to the source and so I asked the worker if this was true. Her emphatic answer was “No way would I ever have an affair with him.” Co-worker 4 was passing by chance and the worker said, “Co-worker 4, would I ever fool around on my husband? Co-worker 4 responded “No, you’ve got the best husband ever.” I believe this was in October 2017. This part caused me to watch the worker’s station more carefully out of curiosity.
• Co-worker 2 – Undated (written statement):

I, Co-worker 2, witnessed the Production Manager approach the worker’s work area, xxx, more frequently than other people approached.

I was working on xxx when I had seen the Production Manager approach the worker so I walked over to speak to the worker. When I got to her station, the Production Manager walked away. Before I witnessed the above, I was talking to the Production Manager about the summer 2017 shut down schedule. Once he answered my question, he proceeded to talk about the worker’s physical appearance. The Production Manager stated that he speculated on the worker’s breasts & he thought she had a surgical procedure done.

As he is a Production Manager, I found this to be very unprofessional and an inappropriate conversation.

Co-worker 8 confirms that she was, on one occasion, a direct witness to one of the worker’s allegations; that the Production Manager inappropriately touched her. Co-worker 2 confirmed that the Production Manager directly made an unprofessional and inappropriate comment to her about the worker’s breasts. All four also provided the following indirect evidence:

• The Production Manager approached and lingered around the worker’s workstation more often and for longer periods of duration, than any other workstation.

• The Production Manager would leave the worker’s workstation when they approached.

• There were rumors in the workplace that the Production Manager and the worker were having an affair.

• The worker complained to them, on numerous occasions, of the Production Manager’s inappropriate actions and comments towards her. One of the witnesses offered to report the Production Manager’s conduct to Human Resources on her behalf.

• The worker would not remove her shop coat, even on hot days. The worker stated that this was because of the Production Manager.

• The JC interviewed a number of witnesses. The employer’s April 13, 2018 notes show that the following witnesses corroborated the worker’s allegations.

• Co-worker 3:

HR Director -The reason why we are meeting is because we are following up on an investigation to do with the worker. During the investigation your name was brought up so we would like to meet with you and ask you some questions. Everything we discuss in here is confidential, it does not leave the room. The worker stated that you have said " ... he comes up a lot to my work station and has said wow that guy has it in for you." The question we have for you is do you have any direct knowledge of any workplace harassment regarding the worker?

Co-worker 3 - Only what she says. Never seen it or heard it.

Joint Committee member 1 - So you have not made that statement?

Co-worker 3 - I noticed he is around her a lot, which is odd, but I even talk to a lot of guys around here.

HR Director - Does the Production Manager go to other employees work stations? Co-worker 3 - He is around her a lot. I am referring to the Production Manager. He is around certain people a lot. I do not want to say names I see him around more near the xxx line. We have all known each other for 26 years, I do consider everyone a friend.

Human Rights Officer - There is no judgement, just want to get an understanding of what happened. You said you only know what the worker tells you. What did she tell you?

Co-worker 3 - The last thing was you should hear the way he talks to me.

Joint Committee member 1 - When was that?

Co-worker 3 - A year ago maybe?

Joint Committee member 1 - Did she elaborate or was that her statement?

Co-worker 3 - That was her statement.

Human Rights Officer - Have you seen the Production Manager talk in a way to anyone?

Co-worker 3 - No I haven't and I have not heard him talk bad to her either.

• Co-worker 4:

HR Director - The reason why we are meeting is because we are following up on an investigation to do with the worker. During the investigation your name was brought up so we would like to meet with you and ask you some questions. Everything we discuss in here is confidential, it does not leave the room. During the investigation your name came up, the worker mentions that the Production Manager keeps going to her work station and you told her that she needs to do something about it. Co-worker 4 - I said that only because what she was telling me, but I did not hear anything. Yes I said this after she told me, so I told her that if you have a problem you need to go see someone to talk to. This was about 5 years ago. And yes, he goes and sees her at her work station. She also told me a comment he made to her awhile back, "Would you do me if you were on a deserted island?" That is the only thing that stuck in my head, only thing I remember her telling me. She never did tell anyone about it until now. She would talk to me and Co-worker 3 and we told her the same thing, if this is bothering you, then you should tell someone.

HR Director - You have never witnessed anything?

Co-worker 4 - I have seen him talk to her but she would be all laughing while they were talking. I never heard anything he said to her but he would go see her about a couple times a day and they would be talking and laughing.

Human Rights Officer - Did he talk to you or others? Co-worker 4 - No, but I only see in my work area. This is unconformable because he was my brother in law for 8 years, but he really doesn't talk to me anyway.

Human Rights Officer - Did the worker ever look uncomfortable when they were talking?

Co-worker 4 - No.

• Union Vice-Chair :

HR Director - The reason why we are meeting is because we are following up on an investigation to do with the worker. During the investigation your name was brought up so we would like to meet with you and ask you some questions. Everything we discuss in here is confidential, it does not leave the room. When we asked the worker if she has spoken to anyone what was going on, she stated that she has spoken to you about this. The question we have for you is do you have any direct knowledge of any workplace harassment regarding the worker?

Union Vice-Chair - I did not witness anything. A few times the worker would come up to me after the alleged incident occurred. She would say how the Production Manager creeped her out, he stayed in her area too long, he made inappropriate comments. I asked her if she wanted to do anything, she said "no I just want to vent". This happened only when I was the weld tech in her area in the rear weld. She would come over to me and say "oh the Production Manager was just here, and he was looking down my top".

Joint Committee member 1 - How did she seem when she told you this?

Union Vice-Chair - She seemed a little flustered and upset at first, but no crying or anything like that, but then she would just go about her day.

Joint Committee member 1 - Do you recall the timeframe when she told you this? Union Vice-Chair - She probably only came to me about 10 times, but this was about 3-4 years ago. There has been nothing recent, I have not heard anything since then.

These witnesses, interviewed by the JC, provided the following indirect evidence:

• The Production Manager was around the worker a lot, which was odd.

• It was obvious that the Production Manager “had it in for the worker”.

• The worker complained about how the Production Manager talked to her (i.e. inappropriately).

• They told her she needed to do something about it.

• The employer is correct in stating that the worker initiated her accusation as a result of her angry reaction to being denied three days of vacation leave from January 3, 2018 to January 5, 2018, inclusive. The worker confirmed this herself in her statement to the HR Manager on January 15, 2018. However, the fact that an employment decision finally triggered the worker to report the years-long sexual harassment, is not determinative, and carries very little weight, in a robust process to find out if the accusation is true. The evidence shows that the employment decision not in favour of the worker was simply “the straw that broke the camel’s back”. Furthermore, there is an undercurrent to the employer’s statement. Namely, there is an underlying suggestion apparent to the recipient of the statement that the worker created the accusation as payback for the denial of three days of vacation. I note that the worker had been with the employer for more than 27 years in January 2018. There is no indication on record that she was a troublesome employee, with disciplinary issues, or a history of conflict with her co-workers and superiors at work. It is simply not believable that someone with this profile would suddenly make up such a vile accusation against another person, with whom she had worked with for years, and knew well, simply because she was denied three days of vacation.

• The investigation of the worker’s complaint was flawed. This is evidenced by the following:

  • The worker’s direct supervisor, Union Representative 1, the first person she approached, essentially blamed her for the Production Manager’s conduct. He wrote, in part:
  • Another thing is that the worker attracts attention because her clothing apparel is very low cut and see through. She does wear very tight pants at times just for the record. The worker at times would flirt with the Production Manager and that was maybe giving him the green light to continue.

  As is known in the common vernacular, he “slut-shamed” her. His viewpoint, written as her direct supervisor and provided to management, was extremely prejudicial to her.

This victim-blaming is echoed in the employer’s argument that the worker never told the Production Manager to stop. Frankly, the onus was not on her to tell the Production Manager to stop; the onus was on him to never have started in the first place.

• Of the five witnesses identified by the worker, and whose statements are noted above, the record shows that the JC only interviewed Co-worker 1. This is a significant deficit, noting the content of the signed statements of the other four witnesses. Furthermore, the JC failed to follow up and probe Co-worker 1 on her statement that, in early December 2017, the worker complained about the Production Manager. This was only one month earlier.

• The JC first took a statement from the Production Manager on January 16, 2018, at 12:00 PM, after speaking with the worker. The employer’s notes show that the Production Manager already knew why he was being interviewed. This is evident by the fact that the Production Manager immediately mentioned the worker’s gastric bypass surgery and “breast job” when asked what, from his stand point, had happened between him and the worker over the past five years. Therefore, either the Production Manager was already aware of the specifics of the allegations, thereby prejudicing the investigation, or the Production Manager had no idea why he was being interviewed, in which case he knew he had inappropriately commented on the worker’s physical appearance over the past five years, which is why he immediately mentioned the gastric bypass and “breast job”.

• In her notes of January 16, 2018, the HR Manager confirms that the Production Manager was not required to engage with the worker or to direct her as part of his duties. These duties fell within the scope of her supervisor’s performance. On January 17, 2018, Co-worker 10 confirmed the HR Manager’s comments, telling the worker that she and the Production Manager had no reason to interact. Yet, there is no indication at all during the JC’s interview with the Production Manager, or any follow-up with him, regarding why so many witnesses confirmed that he spent an inordinate amount of time at the worker’s workstation, which they found to be unnecessary and odd. Since the employer knew that the Production Manager had no reason to interact with the worker, it was evident that it needed to vigorously probe the Production Manager about why he spent so much time at the worker’s workstation. Yet, it did not do so.

• The record shows that the employer and the JC started the investigation at 7:00 AM on January 15, 2018 and completed it on January 17, 2018 at 7:30 AM. The process started with Union Representative 1’s prejudicial comments, already noted above.

Despite the seriousness of the allegations, and the relatively quick resulting investigation, the employer allowed the Production Manager to remain at work during these two days. If the employer truly approached the worker’s allegations with an open mind, it would have removed the Production Manager from the workplace while it conducted the investigation, and at its completion, depending on the outcome, would have determined if he was to return to the workplace. Instead, it chose to keep him in the workplace while the investigation took place, suggesting that the investigation was not completely objective from the start.

When the JC interviewed the Production Manager on January 16, 2018, after speaking with the worker, but before it spoke with any other witness, the Production Manager was instructed that, going forward, his relationship with the worker was to be strictly work-related as the goal was to return the worker to work, and that his interaction with her would be minimal because there were supervisors in place to interact with her. While the employer might say that the instructions to the Production Manager were temporary instructions to be in effect during the course of the investigation, and subject to further review at the completion of the same, this is not the intention that is expressed in the notations of the interview. In other words, one is left with the impression that before any other witness had been interviewed and the investigation completed, the JC appears to have already decided that the sexual harassment had not occurred and that the Production Manager would remain employed with the firm by ordering him to permanently stay away from the worker going forward.

This interpretation of the employer’s intention is buttressed by the fact that it failed to interview all the witnesses identified by the worker and it failed to re-interview the Production Manager after it became aware of the statements of all the witnesses, as outlined previously. Noting these flaws in its investigative process, I place little evidentiary weight on the JCIR. Furthermore, the fact that the worker signed the JCIR is not relevant to a determination on her entitlement to benefits under the Workplace Safety and Insurance Act (WSIA).

• The worker has provided an easily understandable and readily relatable explanation for why she waited so long to report the Production Manager’s behavior: she was afraid. The Production Manager was her supervisor’s boss. She did not want to ruin her career. She did not want to ruin the Production Manager’s career. She did not want to ruin the Production Manager’s marriage as his wife also works with the employer. She blamed herself because she had the surgeries done and felt good about herself. She did not want to not be believed, etcetera. As the worker’s previous representative pointed out, a person who is the target of harassment may be in a vulnerable position and afraid to speak out. The worker’s position in relation to the Production Manager made her extremely vulnerable. Therefore, despite the harassment training she received from the employer, there is nothing unusual or suspicious about her fear and reluctance to report the Production Manager under these circumstances, either to the employer or an outside agency. It is also not difficult to understand and empathize with her repressed anger at him and her desire to one day “blast” him when she no longer had a relationship with the employer. Her inaction was understandably human.

Furthermore, in the report of May 31, 2018, Dr. Chevalier provided the following psychological explanation for why the worker delayed in reporting the harassment:

So how was the worker able to continue working for five-years without apparently any problems? First, it was due to her own strong constitution; she is a strong individual meaning that she possesses a high tolerance for other people’s errors or mistakes, and above all else, she does not do harm to anything or anyone else – “to treat others as we want to be treated.” In addition, she holds to a set of higher values and morals about herself, others and the world. Two, she has an excellent support system made up of her family, extended family and close friends. Three, she has a belief in God for which she is firmly rooted and brings her comfort when times are tough; plus she is overly forgiving of other’s wrongs. And four, this was all before the Production Manager told her “I’m going to rape you” the last day of work prior to the Christmas holidays in December 2017.

• As an Appeals Resolution Officer, I am bound to apply the WSIA and WSIB policies when making the final decision of the WSIB. I must, therefore, evaluate appeals before me in the context of the facts of the case and the application of the relevant legislation and policies. I make no finding of fact regarding any potential contravention of the OHSA. Such a determination is not necessary because it is not germane to the issues before me.
• Whether or not the worker has family members working with the employer who are exposed to the Production Manager is, likewise, not germane to the issues before me.
• The medical and mental health reports on file show that the worker’s health care providers have a thorough understanding of the facts and circumstances of her accident history. As I have already found, the worker was subjected to workplace harassment at the hands of the Production Manager over a five to seven year period. Furthermore, whether it is five or seven years, the length of time remains significant.

Did the Substantial Work-Related Stressor Arise out of and in the Course of Employment?

Yes.

The facts and circumstances show that the Production Manager took advantage of the worker’s auditory and physical isolation, which arose out of her employment, to approach and harass her during the course of her employment. The worker’s statements to her employer, the JC, her doctors, and to the WSIB are consistent in their description of the Production Manager’s behaviour.

Furthermore, the statements from the witnesses are consistent and coherent in their description of what the worker experienced over the years. All of these witnesses, including her union representative, confirmed that the worker regularly complained of the Production Manager’s egregious conduct towards her, most stated that they saw the Production Manager inexplicably hovering around the worker at her workstation on an inordinate amount of occasions and for extended periods of time, daily and over the years, one witness confirmed that she saw the Production Manager inappropriately touch the worker, and another stated that the Production Manager had made direct, inappropriate comments to her about the worker’s breasts. All of these occurrences took place in the course of employment. Therefore, I find that this criterion has been met.

Was the Substantial Work-Related Stressor the Predominant Cause of the Diagnosed Conditions?

Yes.

All of the medical and mental health reports on file show that the worker’s PTSD and MDD occurred because of the workplace harassment. None of the reports point to any additional, concurrent factors as contributory causes to the onset of the PTSD and MDD.

Furthermore, there is no evidence on record, medical, psychological, or otherwise, that suggests a pre-existing history of psychological difficulties.

The medical and mental health evidence on record leads me to find that the workplace harassment was the predominant cause of the diagnosed conditions.

As all four of the required criteria are present, initial entitlement to CMS is granted.

TMS

As per operational policy 15-03-02, TMS, a worker will generally be entitled to benefits under this policy if all of the following four criteria are met:

1. The diagnostic test has been met;
2. The worker suffered a traumatic event(s) that is/are: A) Clearly and precisely identifiable; and, B) Objectively traumatic;
3. The traumatic event(s) arose out of and in the course of employment; and,
4. The traumatic event(s) caused, or significantly contributed to, the appropriately diagnosed condition.

Has the Diagnostic Test been Met?

Yes.

For the reasons previously outlined, this criterion has been met.

Did the Worker suffer a Traumatic Event or Events?

No.

The worker’s accident history is that of generalized workplace sexual harassment over a five to seven year period. She did not provide evidence for the specifics of each occurrence (e.g. specific dates, places, statements, actions, etc.) prior to the threat of rape on December 19, 2017. Therefore, I am unable to find that, prior to December 19, 2017, the traumatic events were clearly and precisely identifiable.

Furthermore, in relation to the threat of rape on December 19, 2017, I do not find that it was objectively traumatic because the worker herself did not take the Production Manager’s threat seriously. In her January 16, 2018 statement to the employer she confirmed, twice, that she took it as a “joke”.

While the statement was outrageous, indecent, and shocking, and, under other circumstances, would more than likely result in a finding that it was objectively traumatic, I cannot reach that conclusion in this specific case because the worker herself confirmed that she did not digest it as a threat of physical violence against her physical integrity. The facts and circumstances show that the rape comment was the ultimate and culminating indignity visited upon her emotional integrity by the Production Manager.

As not all of the criteria necessary to grant entitlement under the TMS policy are present, entitlement to the same is not in order.

CONCLUSION

I find that initial entitlement under the Workplace Safety and Insurance Board’s chronic mental stress policy is in order. There is no entitlement under the traumatic mental stress policy.

The worker’s objection is, therefore, allowed.

DATED: November 26, 2019.

C. da Cunha

Appeals Resolution Officer

Appeals Services Division