WSIAT grants chronic mental stress entitlement to worker who was stalked, harassed and threatened by co-worker for reporting misconduct to employer

Harassment at work is a reality. Despite this, the majority of worker claims for chronic mental stress have been denied by the WSIB – unless the circumstances are truly egregious and abusive. 

The Workplace Safety and Insurance Appeals Tribunal (WSIAT) found that this high threshold was met in a recent decision after a school custodian was bullied, threatened, harassed, stalked and retaliated against. The custodian had reluctantly reported to management (at their request) that a co-worker viewed child pornography on his cell phone during a union meeting held on a Saturday, outside of working hours.

The Decision

In Decision No. 1759/18, the WSIB found that the worker’s stress injury did not arise out of and in the course of employment and she was therefore not entitled to chronic mental stress benefits. Not surprisingly, the worker appealed the decision and was successful.  The WSIAT overturned the Board’s decision and found that:

• The predominant cause of the worker’s stress injury arose from workplace harassment and retaliation she suffered from her co-worker.
• The worker was pressured to report the incident when her supervisor raised safety concerns about children at the school. The worker did not want to report the incident because she knew how vengeful the co-worker could be if he felt someone had crossed him. 
• The WSIAT concluded it was the reporting of the incident, rather than the worker viewing the disturbing images on the co-worker’s phone outside of working hours that ultimately led to the retaliatory conduct she experienced,
• After the worker reported the incident, the co-worker retaliated against her by calling her at home, threatening her and telling her, among other things that he will “cut [her] throat. Watch your back”. 
• the co-worker frequently drove his vehicle into the school parking lot, swerved to U-turn, and squealed his tires to draw the worker’s attention. He also tailed her on her way to school, honked his car horn at her, blew kisses, and made throat slitting gestures with his finger across his neck. 
• Even after the worker obtained a peace bond, the co-worker continued to harass and stalk her to the point that the employer had to develop a safety plan, which included a security guard, a safety buddy, and relocating the worker to a school where the doors were kept locked.
• While some of the harassment occurred outside of school hours, a significant amount occurred on school property during the worker’s regular work hours. 
• The worker provided medical documentation from a clinical psychologist showing that the worker’s diagnoses of PTSD and Major Depressive Disorder were caused primarily by the workplace harassment and stalking by the co-worker.

Taking all of these factors into account, the WSIAT found the worker’s stress injury was linked to the cumulative and repeated instances of harassment and retaliatory conduct by the co-worker, and awarded her WSIB benefits. 

Some Food for Thought…

While this is a great outcome for the worker, one has to wonder why the co-worker’s conduct was permitted to escalate to the point where the worker had to obtain a peace bond.

 It’s also concerning that the WSIB initially denied entitlement to the worker because some of the incidents of harassment did not occur during working hours, forcing the worker to exert more time and energy appealing this decision to the WSIAT. 

If there is a silver lining from this case, perhaps the WSIB can learn from this decision and take a more contextual and expansive approach of what the “workplace” is when assessing whether a worker should be granted entitlement for chronic mental stress benefits for harassment.