Canadian Safety Reporter - sample

7 Canadian HR Reporter, a Thomson Reuters business 2019 News |Canadian Safety Reporter when amendments to the WSIA allowed for mental health-re- lated damage claims stemming from allegations of workplace harassment — individuals are prohibited from making claims and seeking damages from their employer outside of the WSIB system in cases where those claims would be subject to WSIB compensation. In their decisions, the arbitra- tors drew a hard line between mental stress claims "relating to employment" — such as chang- es in job-related duties, disci- pline, or dismissal — and those "arising out of the course of employment" —that is, mental stress caused by certain types of workplace harassment and bul- lying. In these two cases, work- place harassment was deemed to have occurred, meaning that the chronic mental stress arose during the course of employ- ment and was not related to the job itself. As a result, the injured employees were eligible for compensation under the WSIA, thereby prohibiting claims for damages relating to medical costs incurred and income lost due to the alleged harassment. If a claim is found not to be compensable under the WSIA, employees can still make claims related to alleged harassment and bullying through other av- enues, such as civil court or the Ontario Human Rights Tri- bunal. Adjudicators in these forums would then decide the merits of such claims on a case- by-case basis, and award or deny damages accordingly. These developments raise strategic questions for employ- ers who may be forced to address a worker's claims of workplace mistreatment or harassment outside the WSIB system. Spe- cifically, would it be advanta- geous to argue that the employee is not entitled to damages be- cause their claim should instead be made through the WSIB? While that determination will vary depending on the specific circumstances of each case, it's worth noting that pursuing that strategy is potentially risky and could lead to a successful WSIB claim by the employee, result- ing in substantial claims costs for the employer. Still, that could be a favourable approach if it means avoiding hefty legal costs through potentially lengthy litigation, and the risk of even higher damages being awarded to the employee through a civil suit, union grievance or a human rights claim. The bottom line is that new WSIB benefits for workplace mental stress — which at first seemed problematic for employ- ers — could prove beneficial. This is good news for employ- ment law-weary managers and HR professionals who have be- come accustomed to navigat- ing an ongoing barrage of com- pliance challenges. That said, leaders are best advised to work smartly proactively when navi- gating the complex WSIB sys- tem. Being proactive and think- ing strategically could mean the difference between making an imprudent legal decision, and one that has a positive long-term operational and financial impact on their organization. For more information see: • OPSEU and Ontario (Ministry of Community Safety and Correctional Services) (Rosati), Re, 2018 CarswellOnt 1017 (Ont. Grievance Settlement Bd.). • OPPA and Ontario Provincial Police, Re, 2018 CarswellOnt 14884 (Ont. Arb.). Laura Williams is the founder and principal of Williams HR Law, a human resources law firm in Markham, Ont., serving employers exclusively. She can be reached at (905) 205-0496 or lwilliams@williamshrlaw.com. WSIA jurisdiction overrules legal claims for damages New workplace stress < pg. 3

• Cover