Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2017 e act was subsequently amended in 2016 to allow compensation for emergency response workers who were diagnosed with PTSD — with no need to prove it was work- related — but the diagnosis must have been made or the worker stops working after the amendments came into force. As a result, the amendments didn't apply to Hébert's case. Hébert appealed to the WHSCC appeals tribunal, which accepted his PTSD diagno- sis but found that "a traumatic event (is) one that is sudden and outside the realm of what is expected or usual within the workplace" — a position that had been established by the New Brunswick Court of Appeal in its 2005 decision W. (D.) v. New Brunswick (Work- place Health, Safety & Compensation Com- mission). It interpreted this to mean that what may normally be witnessed by ambu- lance attendants in the course of their work should not be considered traumatic events for compensation purposes and were part of the normal course of work in such occupa- tions. e tribunal denied Hébert's appeal. e New Brusnwick Court of Appeal agreed with the principle that "disability caused by mental stress does not constitute compensable injury unless the disability is the result of an acute reaction to a traumatic event." It noted that the test for stress-related claims involved determining if the condition arose out of and in the course of employment and the trau- matic event was "sudden and unexpected," not an employment-related decision, not from gradual or chronic onset stress, and can be measured objectively. However, the court noted that while it had previously established that "a traumatic event (is) one that is sudden and outside the realm of what is expected or usual within the workplace," it had also acknowledged that "it is universally accepted that employees who suffer from post-traumatic stress disorder qualify for compensation benefits, provided, of course, the traumatic event arose out of and in the course of employment." e court found that the appeals tribunal erred in interpreting its decision in W. (D.), which "clearly distinguishes between cases where a stress-related condition results in PTSD and those where it does not" — the fact that the employee is diagnosed with PTSD allows the assumption that the event was traumatic, said the court. e court also found the WHSCC and the tribunal erred in interpreting the policy on mental stress, in that while the policy states that the traumatic event causing stress "typi- cally is unusual and excessive" than what can be expected in the worker's occupation, it also states this is not true in all cases. is left the door open for first responders — where traumatic events may be expected but aren't necessarily easier with which to deal. e court also determined the tribunal erred in finding Hébert wasn't eligible be- cause he couldn't identify one particular incident that triggered his PTSD. e policy and D.W. both established that a series of traumatic incidents causing PTSD in a first responder qualify him for workers' com- pensation. e WHSCC was ordered to pay Hébert the benefits for his disability. For more information see: • Hébert c. Commission de la santé, de la sé- curité et de l'indemnisation des accidents au travail et autre, 2017 CarswellNB 456 (N.B. C.A.). • W. (D.) v. New Brunswick (Workplace Health, Safety & Compensation Commission), 2005 CarswellNB 390 (N.B. C.A.). that "I didn't realize what she did at the time" and the next day omas told him that she had been working with the band for a long time and "she'll fight for her job." Employee accused of assault On July 22, the band terminated omas' employment. e termination letter men- tioned the "verbal and physical assault" of her co-worker as well as other bad behav- iour towards other employees. It also cited disobedience towards leadership and re- fusal to carry out instructions as "serious misconduct warranting summary dismiss- al." When omas contacted the health co- ordinator — her direct supervisor — it was the first the co-ordinator had heard about it. omas denied any physical contact be- tween her and the co-worker in the incident and claimed there were several employees who could corroborate that. She said there was no history of animosity between her and the co-worker and she wasn't questioned as part of the band's investigation. A few days after her termination, omas attended a band council meeting to discuss her job. She claimed that when she spoke, one councillor pointed at her and said "be- cause of all the things you did to my family in the past, I want to get you." omas filed a complaint of unjust dis- missal. Shamattawa also mentioned im- proper use of a debit card, insubordinate conduct, withholding a bathroom key from a disabled person, and an inability to work with others as factors it considered in dis- missing omas, though it didn't provide any evidence of these. e adjudicator found that Shamattawa didn't properly investigate once it learned of the incident. ere weren't many witnesses that could definitely say the push happened, omas herself denied it happened, and the co-worker only filed an incident report after being prompted by the chief and band coun- cil. And most importantly, omas wasn't interviewed to get her account — particu- larly since it should have been clear there were potential mitigating factors involved, from the emergency situation that featured people "scurrying about" and there was no prior animus between omas and the co- worker, said the adjudicator. "(omas) was deliberately and system- atically shunned and excluded, as was her workplace supervisor," the adjudicator said. "I find that the investigation was a sham, plain and simple, so that no genuine effort was made to get to the bottom of what had actually happened, and as to how seriously it ought to be treated. As a result of the improper investigation and the factoring in of unsubstantiated rea- sons for termination, the adjudicator found Shamattawa lacked good faith and fair deal- ing in its handling of omas' dismissal, par- ticularly with such a serious charge as assault of a co-worker. Not only did the band not properly determine if the push actually hap- pened, it also took a leap in characterizing it as a "physical attack," from which the alleged victim was uninjured and didn't see the need to report it right away, said the adjudicator. Without evidence of a real assault, the adjudicator found that Shamattawa had no grounds for dismissal — particularly egre- gious since omas was a long-time em- ployee who was relied upon by many in the community. As a result, the dismissal was unjust, said the adjudicator. Since omas was at a relatively advanced age, her opportunities were limited in the remote community, and she was entrenched in her role — community members still con- tacted her for help after she was terminated — Shamattawa was ordered to pay omas two weeks' wages per year of service — 40 weeks — punitive damages of $10,000 for embarrassment and suffering from the bad- faith manner of her dismissal, and $9,000 in legal costs, for a total of $57,000. For more information see: • omas and Shamattawa First Nation, Re, 2017 CarswellNat 5067 (Can. Labour Code Adj.). Canadian Employment Law Today | 7 More Cases Victim of alleged assault only filed report after prompting « from TRUMPED-UP on page 3 PTSD caused by traumatic event « from FIRST RESPONDER on page 1

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