APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20230065
OBJECTING PARTY: worker
RESPONDENT: employer
REPRESENTED by: EMPLOYER REPRESENTATIVE
HEARING: HEARING IN WRITING
HEARD by: c. goegan, appeals resolution officer
DATED: MAY 25, 2023
ISSUE
The worker is objecting to the July 21, 2022 decision of the Case Manager denying initial entitlement to chronic mental stress (CMS).
BACKGROUND
On February 14, 2022, this then 47-year old heavy equipment operator for a municipality was called to work overtime because of a snowstorm. The employer expected all employees to arrive within 45-minutes of a call for overtime. The worker arrived at work outside of the 45-minute window and received a verbal warning from their supervisor. Upon receiving the verbal warning, a heated exchange between the parties quickly ensued with the use of profane language. After the first exchange, the worker met with their supervisor and a union representative later the same day. During the second meeting, the supervisor made a comment the worker perceived as a threat.
The worker and the supervisor met for a third time on February 15, 2022. During that meeting, the supervisor made another comment the worker perceived as threatening. On February 16, 2022, the worker reported their interactions with the supervisor to the company human resources department and filed a harassment complaint. The worker submitted voice recordings of their interactions with the supervisor and requested the supervisor receive a one-month suspension.
Following an internal investigation, the employer determined the supervisor’s conduct during the February 14, 2022 interaction amounted to workplace harassment. They suspended the supervisor for one day without pay and notified the worker of their investigation findings and the suspension on March 7, 2021. The worker did not agree with the duration of the suspension.
The worker remained at work and sought medical attention with their family doctor on March 29, 2022. The family doctor diagnosed anxiety. The worker resigned from the employer on May 30, 2022.
In the July 21, 2022 decision, the Case Manager denied initial entitlement to CMS. They determined the incidents between the worker and the supervisor, although inappropriate and unprofessional, amounted to interpersonal conflict that did not rise to the level of a substantial workplace stressor. The Case Manger also determined the employer’s decision to suspend the supervisor for one day was not a substantial stressor as it was a routine decision relating to the normal employment function.
The worker objected to the July 21, 2022 decision and the matter was referred to the Appeals Services Division for consideration.
AUTHORITY
Operational Policy Manual
Published
15-03-14 – Chronic Mental Stress 11-01-08 – Audio/Visual Recordings
January 2, 2018 October 12, 2004
ANALYSIS
I carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons explained below, I find the worker does not have entitlement to benefits for chronic mental stress (CMS).
The Worker’s Position
On the December 13, 2022 Appeal Readiness Form (ARF), the worker did not provide additional submissions for consideration. As such, I reviewed and considered the submissions the worker provided with the October 10, 2022 Intent to Object (ITO) Form. While I reviewed the submissions in their entirety, I have summarized the worker’s arguments as follows:
After the employer called them to work overtime, the worker never guaranteed they would arrive at work within 45-minutes.
The supervisor gave the worker a verbal warning in a public area and in front of a co-worker, which was unprofessional and violated their right to privacy.
During the second meeting on February 14, 2022, the supervisor threatened the worker verbally. The worker felt they were being set up for future discipline, which affected them psychologically.
The supervisor apologized for their behaviour. During the apology, the supervisor bullied them by trying to dissuade them from filing a harassment complaint.
While they acknowledged the escalation of their own behaviour during the February 14, 2022 meeting the employer ultimately recognized and acknowledged workplace harassment.
The Employer’s Position
In submissions provided with the Respondent Form, the employer’s representative outlined their position as follows:
The worker had a history of absenteeism and tardiness.
During the interactions between the worker and the supervisor on February 14, 2022, the discussions escalated quickly and both acted inappropriately. Both parties made aggressive comments using profanity directed at one another. Subsequently, they apologized to each other.
The interpersonal conflict between the worker and the supervisor was long-standing and verbal disagreements and the use of profanity between them was not unusual. The events in February 2022 were no different.
As a result of the internal investigation, the employer concluded both parties made heated and profane comments and despite being provoked, the supervisor’s conduct did not meet the standard expected of him as a manager.
The worker was not satisfied with the discipline imposed on the supervisor by the employer.
The worker continued to work and only sought medical attention on the eve of his resignation with a plan to locate to a different province.
There was no appropriately diagnosed mental stress injury.
Even if there was an appropriately diagnosed mental stress injury, it was not caused by a substantial work-related stressor or series of stressors. Rather, it was the result of a typical interaction between the worker and the supervisor.
The worker was more upset at the disciplinary penalty imposed by the employer, which was normal in the course of the managerial function.
Entitlement to Chronic Mental Stress
According to Policy 15-03-14 (Chronic Mental Stress), a worker is entitled to benefits for chronic mental stress arising out of and in the course of the worker’s employment. In order to establish entitlement for CMS, there must be a substantial work-related stressor arising out of and in the course of the employment, which is the predominant cause of an appropriately diagnosed mental stress injury.
The policy states 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. Workplace harassment is generally considered to be a substantial workplace stressor and occurs when a person or persons, while in the course of 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. An appropriately diagnosed mental stress injury must be made in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM) and must be made by a regulated health professional.
Policy 15-03-14 (Chronic Mental Stress) indicates that a worker is not entitled to benefits for CMS caused by decisions or actions of the worker’s employer relating to the worker’s employment, including a decision to change the work being performed, the working conditions, to discipline the worker or to terminate the employment. Exceptions exist when an employer’s decisions and actions are not part of the employment function such as workplace harassment or conduct that a reasonable person would perceive as egregious or abusive. Similarly, interpersonal conflicts between workers and their supervisors, co-workers, or customers are also generally considered to be a typical feature of normal employment and not substantial stressors unless the conflict amounts to workplace harassment or egregious and abusive behaviour.
In the Worker’s Report of Injury (Form 6), the worker attributed the development of their mental stress injury to the three separate interactions with their supervisor that took place on February 14, 2022 and February 15, 2022. The worker also submitted audio recordings of the three meetings.
The first recording was 4 minutes and 10 seconds in length. It begins with the supervisor advising the worker of a verbal warning for not arriving at work within 45-minutes. The worker acknowledges they were six-minutes late and references a prior meeting where they questioned the supervisor on the consequences of arriving at work beyond the 45-minute rule. The supervisor confirmed the worker was only receiving a verbal warning and indicated that if it happened again they would not pay the worker. The supervisor then tells the worker not to laugh at them and a heated exchange ensues about the worker’s attendance and the reasons for the 45-minue rule in the collective agreement. The supervisor states the 45-minute rule was established in the collective agreement because of the worker. Both parties yell and use profane language directed toward each other and the supervisor requests the worker attend their office with a union representative.
The second recording was 1 minute and 47 seconds long. It begins with the supervisor requesting the worker listen to them without interrupting. The worker advises the supervisor they are recording the conversation and the supervisor agrees. The supervisor requests the worker advise him if they are going to be late reporting for work. He informs the worker he must cite the worker for lateness as other employees are expected to attend work on time. The supervisor uses profane language and says if the worker makes him look bad, “I will fk you up” by issuing a verbal warning. The supervisor says he knows the worker will “fk up” again and he will have to issue a written warning. The supervisor states it was the first time he used the 45-minute rule and the worker was late. He then asks the worker what their excuse for being late was and the worker provides a reason. The worker then accuses the supervisor of confronting them without a union representative present and the supervisor states the worker did not request one. The supervisor begins to yell “did you request one” and worker asks them to stop yelling after which, the meeting concludes.
The third recording was thirteen minutes and 44 seconds in length. The meeting begins with the supervisor and the worker discussing Covid-19 screening. The supervisor then brings up the situation from the previous day. The supervisor tells the worker he does not care if the worker is late but they must provide an excuse. The worker then questions why the 45-minute rule was applied the day before. The supervisor explains that due to the condition of the roads, he needed staff to report to work as quickly as possible. The worker then says that is where they and the supervisor always end up “butting heads”. The supervisor says they always make up and the worker agrees. The supervisor states that it is not about him and the worker. He indicates it is about the union accusing him of providing preferential treatment to certain people. The two then have a long cordial discussion about employee discipline and both parties acknowledge their role in the previous argument. The supervisor acknowledges the worker is at the bottom of the list of employees that may potentially face discipline and the meeting concludes amicably.
In addition to the audio recordings submitted by the worker, I also reviewed and considered a February 24, 2022 investigation interview the employer conducted with the worker, a March 3, 2022 interview the employer conducted with the supervisor and a document submitted by the worker describing a chronology of events from July 19, 2021 to incident submitted by the worker.
In the February 24, 2022 interview, the worker acknowledged it was not the first time they had “blow outs” with the supervisor as they had a volatile relationship. The worker advised the employer the supervisor had started treating them differently after the work refusal in the past year. The worker stated they reported the February 14, 2022 incident as it was the first time the supervisor had used profanity towards them. The investigation also contained notes indicating that with the exception of the recorded conversation, many of the concerns expressed by the worker pertained to their opinions concerning the management of staff in the department. The worker also admitted with the exception of the recorded conversation, he and the supervisor regularly got into verbal altercations and used profanity in their exchanges.
In the March 3, 2022 investigation interview, the supervisor listened to the recorded conversation from February 14, 2022 and acknowledged that he was “out of line”. The supervisor discussed the challenges with managing the worker and acknowledged he let his frustration and anger get out of control. The document stated the supervisor’s statements during the recording met the definition of harassment and as a result, the supervisor would receive a one-day suspension, be required to apologize to the worker and be required to attend leadership training. The document also stated verbal disagreements and profanity appeared to be a departmental culture issue.
In the chronology of events document, the worker described an incident where they refused what they felt was unsafe work cutting grass with a tractor on July 19, 2021. The worker perceived that workplace harassment began after they refused unsafe work because another co-worker informed them the supervisor made indirect comments the worker could not operate a backhoe due to the work refusal. The worker also indicated that after the employer presented the results of the human resources investigation, they were not happy with the results. The worker stated that after weeks of not sleeping and the start of depression, they saw their doctor as they experienced anxiety about going to work.
Finally, I noted a March 29, 2022 Health Professional’s Report (Form 8) from Dr. Lee, a family doctor. In the Form 8, Dr. Lee listed the date of the incident as February 14, 2022 and described the accident as “harassed by manager”. The Form 8 had the diagnosis of “anxiety” and Dr. Lee prescribed the medications Cirpralex and Clonazepam.
After considering the evidence in the record, I find the interactions that took place on February 14, 2022 involving an argument with yelling and the use of profanity does not rise to the level of a substantial workplace stressor as required in Policy 15-03-14 (Chronic Mental Stress).
I find the recordings of the February 14, 2022 conversations between the worker and their supervisor pertained entirely to the supervisor’s decision to issue the worker a verbal reprimand for arriving late contrary to a provision in the collective agreement. During the first February 14, 2022 conversation, both parties yelled at each other during the ensuing argument and both parties used profane language during the conversation. The entire exchange lasted less than five minutes. The worker subsequently informed the employer during an investigation that they and the supervisor regularly got into verbal altercations with each other and used profanity during their exchanges. Although yelling and using profanity in the workplace is unprofessional, a supervisor issuing an employee a reprimand for lateness and discussing further discipline is regular part of the employment function.
After listening to the February 14, 2022 conversations, I also note the supervisor did not actually say anything directed toward the worker that did not pertain to the employment function and could reasonably be perceived as egregious, or vexatious. The worker perceived the supervisor’s comments about reprimands for lateness as threatening; however, in my view a supervisor discussing progressive discipline with a worker is part of the normal managerial function. While I acknowledge the employer concluded the supervisor’s behaviour constituted workplace harassment, I conclude the February 14, 2022 conversations between the worker and the supervisor did not rise to the level of a substantial workplace stressor. Both parties engaged in the conflict equally over a disciplinary matter for an extremely brief period. Both were noted to regularly get into verbal altercations with each other and use profanity. Finally, despite the yelling and profanity, the supervisor did not actually say anything to the worker that did not pertain to the managerial function and could reasonably be perceived as egregious or vexatious. As noted in Policy 15-03-14 (Chronic Mental Stress), workers are not entitled to benefits for chronic mental stress that results from interpersonal conflict or an employer’s actions that are part of the employment function, including discipline.
I find it significant that after the February 14, 2022 interactions, the worker subsequently met with the supervisor for a lengthy period on February 15, 2022. During that conversation, the supervisor acknowledged their behaviour the previous day was inappropriate. The parties then proceeded to have a cordial discussion with each other and both acknowledged their role in the previous day’s argument. Profane language was used during the conversation; however, the conversation remained civilized. The worker submitted that the supervisor tried to dissuade them from filing a harassment complaint during the meeting. I note the parties discussed employee discipline in the workplace during the conversation, but I did not interpret the discussion to include the supervisor trying to threaten the worker or coerce them not to file a harassment complaint. I also find it significant that the worker did not seek medical attention for over a month after the February 14, 2022 incident and did so after the employer informed them of the results of the internal investigation.
The worker also submitted audio recordings of their meetings with the employer’s human resources personnel. In those recordings, the worker advised the human resources manager they did not feel a one-day suspension was adequate for “violence in the workplace” and suggested one-month without pay was more appropriate. It is worth pointing out that at no point during the February 14, 2022 interactions did the supervisor threaten the worker with violence. In their chronology of events, the worker also indicated they were not happy with the investigation results and subsequently sought medical attention.
I find the employer’s decision to discipline the supervisor with a one-day suspension contrary to the worker’s demands constitutes a decision by the employer relating to the employment function and is not a substantial stressor as described in Policy 15-03-14 (Chronic Mental Stress).
In conclusion, I find the yelling and the profanity exchanged between the worker and their supervisor on February 14, 2022 and February 15, 2022 did not rise to the level of a substantial workplace stressor.
I also find the employer’s decision to issue the supervisor a one-day suspension is a decision relating to the employment function. As I find the evidence does not establish the presence of a substantial work-related stressor, I find the worker does not have entitlement to a mental stress injury under Policy 15-03-14 (Chronic Mental Stress).
CONCLUSION
I conclude the worker does not have entitlement to benefits for chronic mental stress.
The worker’s objection is denied.
DATED May 25, 2023
C. Goegan Appeals Resolution Officer Appeals Services Division