APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20230057
OBJECTING PARTY: WORKER
REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT: EMPLOYER
REPRESENTED by: N/A
HEARING: HEARING IN WRITING
HEARD by: SUZANNE FLANNERY, APPEALS RESOLUTION OFFICER
DATED: FEBRUARY 17, 2023
ISSUE
The worker representative is objecting to the Case Manager’s (CM) decision of December 10, 2019 that denied entitlement to Chronic Mental Stress (CMS) from workplace harassment.
BACKGROUND
On July 9, 2019 this female heavy equipment operator left work early, sought medical attention from their doctor, and was diagnosed with depression related to workplace harassment.
In the Worker’s Report of Injury (Form 6), the worker explained that they felt targeted by their supervisor for bringing forward complaints about other staff not adhering to health and safety standards in maintaining the equipment they use. The worker said they were disciplined for not following work directions and that incidents were being manipulated to create opportunities for progressive discipline against them. The worker also reported an incident to the human resources department about finding wet underwear near their car and provided a photo to the employer concerning this. The employer told the worker that they were unable to investigate the issue.
The CM denied the claim on December 10, 2019, stating the issues reported were interpersonal conflicts between employees and therefore did not meet the criteria as a substantial work related stressor. The worker representative objected to this decision and provided additional information on March 28, 2022 including the results of the employer’s third party investigation, stating that this information substantiated incidents of workplace harassment and a toxic work environment. The CM reviewed this new information and upheld the December 10, 2019 decision citing that the new information provided new and different incidents not previously reported, and that the medical documentation did not support that the worker’s depression was connected to these new incidents.
The worker representative filed an Appeal Readiness Form September 22, 2022 continuing to maintain that the information in the file supported the worker should be entitled to benefits for CMS. The claim was
forwarded to the Appeals Services Division for review. The matter before me is to determine if the worker is entitled to benefits for CMS from workplace harassment.
AUTHORITY
Operational Policy Manual Published
15-03-14 Chronic Mental Stress January 2, 2018
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. The worker’s objection is allowed. I find the worker is entitled to benefits for CMS from workplace harassment.
Worker Representative’s Position
The worker representative argues that the employer’s third party investigation report confirmed that the worker:
was subjected to racist comments,
was subjected to comments and materials that sexualized or objectified women,
was exposed to sexist graffiti in the employee washrooms,
was exposed to an offensive poster in the workplace,
witnessed co-workers making gestures to other co-workers about women in public, and
states that a co-worker unloaded a truck close to the worker, leaving the worker in a cloud of dust.
They state that the evidence supports that the worker had filed a complaint to the employer a few weeks prior to filing this claim to the WSIB. Therefore, they argue that the allegations provided during the submissions of new information for reconsideration, were reported contemporaneously to the employer, despite not being initially reported in the Form 6. Therefore, they argue this information is relevant and should be accepted as a part of the accident history in this case. They state the employer’s investigative report confirms the worker was harassed at work.
Employer’s Position
The employer indicated they are participating in this appeal, however no submissions were provided by the employer for review.
Policy
The Operation Policy Manual, policy 15-03-14 Chronic Mental Stress states a worker is entitled to benefits for chronic mental stress arising out of and in the course of the worker’s employment.
A worker is not entitled to benefits for chronic mental stress caused by decisions or actions of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.
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.
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.
Workplace harassment will generally be considered a substantial work-related stressor.
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.
Findings
Policy 15-03-14 outlines three criteria that must be present to allow entitlement for CMS. The first being that the worker is diagnosed with an appropriate mental stress injury. The policy indicates that this can include a depressive disorder. The worker was diagnosed with depression by their family doctor, who is able to provide a Diagnostic and Statistical Manual of Mental Disorders (DSM) diagnosis such as depression. On July 9, 2019, the worker went to their doctor, and the chart notes in the file from that visit, as well as the Health Professional’s Report for Occupational Mental Stress (CMS 8) confirmed that the worker was reporting their depressive symptoms were from workplace harassment related to their supervisor.
I find this meets the first criteria required under policy 15-03-14. I find there is no other information in the file that would suggest that the worker’s diagnosis of depression is related to any other cause. The family doctor’s chart notes in the file date back to January 2019 and there was no mention of prior concerns related to mood in these notes.
I note there is mention in the claim that the worker had previously seen a psychiatrist reportedly related to their ongoing experiences at work. However, after inquiries made a few times by the CM, these records were not available. I reference this to illustrate that I have no past medical records that support the worker had any other underlying depression leading up to July 2019 that was linked to any other cause. For these reasons, I find this diagnosis of depression and medical information of July 9, 2019 is connected to the reported workplace harassment being claimed.
The next criterion are linked together, in that the worker’s mental stress injury must be caused by a substantial work-related stressor, and arise out of and in the course of the worker’s employment. On these points I find there is a substantial work related stressor, workplace harassment, that did arise out of and in the course of the worker’s employment.
I note the worker completed a Form 6, and described actions that align with the worker being upset with the decisions of the employer or upset from disciplinary action. However, the worker stated that they feel situations were “manipulated” for them to be progressively disciplined inappropriately. The worker’s focus in this report was on the discourse between herself and the employer, more specifically their supervisor.
I note the March 28, 2022 submission from the worker representative provided an employer summary report of the third party investigation that occurred. This report was given to the worker June 24, 2020 (as per the hand written date at the top of the report as the document is otherwise not dated). This report stated that the worker contacted a consultant with the “Human Rights Office”, and raised a number of concerns, which were outlined in more detail on June 25, 2019 to that office. It is not clear in this document if the report is saying this was an internal office with the employer, or if they are referring to the Ontario Human Rights Commission. There were 34 allegations made. The employer then hired a third party company to investigate these allegations.
This report does include additional details surrounding the types of interactions and scenarios that were occurring in the years leading up to this illness diagnosis, and most of these were not detailed in the Form 6. However, given the time line of when the report was filed to the “Human Rights Office” in June 2019 and the diagnosis from their doctor within only a few weeks of making the complaint, I accept the details outlined in this report as pertinent to the issue at hand. I accept the details in this investigation report are relevant accident history details, in addition to the Form 6 details and the additional information the worker provided throughout the file.
In this case, I find the worker was exposed to a series of events over time that when considered individually, could be brushed off as interpersonal conflict or inappropriate behaviour in the workplace. However, in the context of this specific worker’s situation and workplace, I find the documented substantiated instances in the report, collectively amount to the worker being exposed to incidents of workplace harassment and conduct against them that a reasonable person would perceive as egregious or abusive. My review will focus on the substantiated incidents as outlined in the employer’s summary report. I place weight to this document given the document substantiates many of the incidents the worker brought forward.
I also place weight to this report as it confirms that disciplinary action was taken against the employees for contributing to a toxic work environment and that the staff were in contravention of the employer’s Human Rights and Anti-Harassment/Discrimination Policy. The report also stated the workplace conduct was discriminatory in contravention of the Human Rights Code, and Occupational Health and Safety Act. Further, of the three staff members found to have violated these above codes, one had retired, but the other two were transferred out of the worker’s workplace to different areas, to address the worker’s safety concerns.
The 34 accusations are in the claim file. I will focus my review on the ones that were substantiated, which constitute workplace harassment and collectively amount to an environment of behaviour that a reasonable person would perceive as egregious or abusive over time.
I note that the file information supports the worker identified as female. The worker worked in a small unit predominately with males and only one other female. The work unit consisted of heavy equipment operators. There are conversations with the worker representative outlined in Memo #32 where the CM confirms the worker is a person of colour. The worker also mentioned in one of the complaints that homophobic comments were also made in the workplace. There is mention in the file that the worker had a same sex partner and that their co-workers knew this. I note these facts to highlight that this worker is female, a person of colour, and gay.
I now turn to the substantiated complaints outlined in the employer’s summary report. While some of these complaints were not made directly at the worker per se, I find them important when reviewing this worker’s circumstances as a whole. Specifically, the source of some of these instances being from their direct supervisor who is in a position of power over this worker. Given the position of power the
supervisor was in, I find a number of these instances would reasonably be perceived as damaging to the worker given their identity, and that a reasonable person would perceive these as egregious or abusive, as well as constituting workplace harassment. I refer to the other parties going forward as the supervisor, co-worker A and co-worker B.
The worker’s supervisor referred to another co-worker of colour openly in a meeting as “the guy with the towel on his head”. The worker raised this comment as a concern to the supervisor after the meeting and there was no response from them.
Co-worker A made comments and showed the worker material that sexualized women. The worker’s supervisor had a calendar in their office with scantily clad women in it. The supervisor confirmed that co-worker A had given the calendar to them. The worker commented on the calendar to the supervisor. The worker stated the supervisor’s response was “what is wrong with it, she’s not naked”.
There was graffiti in the washrooms. The report did not indicate what it was, but said the presence of graffiti was substantiated. The worker explained through the representative’s letter of May 27, 2022, that there were two different instances in 2016 and 2019 of homophobic comments written on the walls. The first time in 2016, the graffiti stayed there for six months after bringing it forward to the employer. Graffiti appeared again in the winter of 2019 and the worker reported this to the supervisor above, who did nothing to address the issue. (note- the date says 2019 however this may be a typo given the worker was off work in the winter of 2019).
The worker saw the supervisor gesturing to other male co-workers about other women in public. The worker elaborated on this by saying that the worker witnessed their supervisor signalling to co-worker A to look at a woman walking by. The worker witnessed this on two different occasions at public work sites.
A South Park poster hung in the workplace; the report substantiated this but made no reference to the content of the poster however, it was listed as an infraction for causing a poisoned work environment. The worker elaborated on this poster explaining the poster said, “OK day shift, show me on the doll where the night shift hurt you”.
The supervisor and co-worker A would make comments when individuals were using the washroom. There is no further clarification in the report or from the worker about the context of this, however the employer listed it under the Harassment Discrimination section of their report, therefore I accept this as harassment.
The worker found a dildo near their car in 2011. The worker filed a grievance regarding this and the investigation substantiated the event in the report.
There were repeated instances of photos of the worker being removed, and their picture noticeably covered up on three separate instances in the workplace. In 2018, a team photo was removed from a display case and the report explained this occurred because of incivility in the workplace. In May 2019, the worker’s face was covered in a photo, and this was attributed to interpersonal conflict. In June 2019 a photo in the supervisors office was replaced with a different one. In July 2019 co-worker B denied knowledge of a photo being covered but said “they would not get into any politics” to the investigator. This led the investigator to determine the actions with the photos was the result of interpersonal conflict and incivility, but not due to the workers sex or sexual orientation. This was the wording used in each of these four instances as it related to the photos.
Co-worker B told the worker that they had “split (spelling-spit) cleaned” her car – the investigator concluded this remark was the result of interpersonal conflict and incivility in the workplace.
On May 7, 2019, the worker called the lunchroom to speak to the supervisor about asking for time off. The supervisor told the investigator there was no phone in the lunchroom, and this was confirmed to be untrue. It was substantiated that the worker heard someone in the background say, “we don’t want you here, go away” when the worker called the lunchroom. The investigator
deemed there was insufficient evidence to determine who answered the phone or whether anyone knew it was the worker calling.
- Co-worker A unloaded a truck too close to the worker at the dumping pad and a cloud of dust landed on the worker.
There are additional unsubstantiated incidents according to the report that the worker was consistent in reporting from the start of this case, specifically reporting two incidents where the worker found wet underwear near her car on May 15 and 16, 2019. The worker described in their subsequent submission that they went to the employer and reported this and the employer human resources contact responded that it was outside of their purview to investigate.
The worker explained in the May 27, 2022 submission that they found men’s underwear on the ground beside the back of their personal vehicle in the employer’s parking lot on May 15, 2019. The worker parked in a different area of the same lot the following day, and found the same pair of underwear left beside the driver’s side door of the car. While the investigation report says that this was not substantiated, I accept the worker’s report of this information in light of the confirmed prior incident in 2011 of the dildo being left at her car, and that the says she provided pictures of this to the employer. The employer report did not provide any rationale as to why this incident was not substantiated, but I find the lack of action by the employer at the time does not equate to this incident being unsubstantiated.
I find that when I look at the particular circumstances of this case, considering the worker’s gender and identified sexual orientation, that the incident with the dildo left on their car as well as the repeated underwear left at their vehicle constitutes bullying and harassment. The incident with the dump of materials too close to them as well as a co-worker saying that they have “split (spit) washed their car also falls in this category.
In consideration of the many substantiated incidents that are objectively inappropriate, one could argue that many of these instances individually are one off situations, or as interpersonal conflict. However, I do not find that is the case here. I apply weight to the fact many of these instances involved the same two people (supervisor and co-worker A). I also apply weight to the fact that the worker brought forward some of these concerns to the supervisor with no action or response occurring, shows that these instances were impacting the worker in the workplace.
I find it reasonable that hearing a racist comment being made, even if not directed at them, would be emotionally disturbing especially when they are a person of colour themselves, and when the comment was from their manager. I also find the consistent lack of action taken to remove the graffiti, the poster implying staff might hurt each other in some way and the calendar in the supervisor’s office, are indicators of complacency and tolerance of unaccepted practices in the workplace. The moving of the photo or covering of the worker’s face also compounds this. The lunchroom incident was substantiated and while could not be proven to be directed at her specifically, in light of the other incidents, I find it reasonable that the worker would assume it would have been directed at her.
In summary, I find there is sufficient evidence supporting that this worker experienced both workplace harassment as well as repeated situations that a person would perceive to be egregious when considered collectively. As such, I find the worker did have a substantial work related stressor in the workplace. As all of these circumstances did happen while at work, and while working, the substantial work related stressors did arise out of and in the course of the worker’s employment.
As required by policy 15-03-14, I find the worker has been diagnosed with depression as a result of workplace harassment and due to repeated actions that a reasonable person would find egregious.
These substantial work related stressors did arise out of and the course of the worker’s employment. As such, the criteria under policy 15-03-14 Chronic Mental Stress are met.
CONCLUSION
The worker’s objection is allowed. The worker has entitlement to CMS from workplace harassment.
The matter before me was initial entitlement to benefits. I am returning the file to the Operations Division for review of entitlement to benefits that flow from this decision.
DATED February 17, 2023
Suzanne Flannery Appeals Resolution Officer Appeals Services Division