HRMA Conference

May 2, 2013

Bullying and Harassment

in the Workplace

&

Mental Health Claims Unit

N a n c y H a r w o o d

D i re c to r Re g u l ato r y P ra c t i c e s

Prevention of Bullying and Harassment

in the Workplace

WorkSafeBC Policies

Policies under WCA

Passed by Board of Directors in March 2013

Prevention of bullying and harassment in workplace

Obligations on employers, workers and supervisors

Definitions

“bullying and harassment”

includes any inappropriate conduct or comment by a person towards a worker that the person knew or reasonably ought to have known would cause that worker to be humiliated or intimidated, but

excludes any reasonable action taken by an employer or supervisor relating to the management and direction of workers or the place of employment.

Employers Obligations

Section 115 Workers Compensation Act “employer general duty section”

Obligations of employer • take all reasonable steps in the circumstances to ensure the

health and safety of workers

• inform, instruct, train and supervise workers

Employers Obligations

Take “reasonable steps” to address to prevent where

possible, or otherwise minimize, workplace bullying and harassment

Policy statement - bullying and harassment not acceptable or tolerated

Take steps to prevent or minimize workplace bullying and harassment

Develop and implement procedures for reporting incidents or complaints of workplace bullying and harassment:

• how, when and to whom a worker should report

• procedures for if the employer is the alleged bully and harasser

Employers obligations

Employer obligations - Reasonable steps

Develop and implement procedures for dealing with incidents or complaints of workplace bullying and harassment

• how and when investigations conducted

• what’s included in investigation

• roles and responsibilities

• follow-up to investigation (description of corrective actions, timeframe, dealing with adverse symptoms, etc.)

• record keeping requirements

Employer Obligations – Reasonable Steps

Inform workers of the policy statement and the steps taken in by employer

Train supervisors and workers • recognizing

• responding

• reporting

Conduct annual review

Employers Obligations

Not engage in bullying and harassment of workers and supervisors

Apply and comply with the employer’s policies and procedures on bullying and harassment

Worker Duties

Section 116 Workers Compensation Act “worker general duty section”

Obligation of workers • to take reasonable care to protect the health and safety of other

persons who may be affected by the worker's acts or omissions at work

Worker Duties

Worker must take all reasonable steps to prevent where possible, or otherwise minimize, workplace bullying and harassment.

Workers Duties

Not engage in bullying and harassment of other workers, supervisors, the employer

Report if bullying and harassment is observed or experienced in the workplace

Apply and comply with the employer’s policies and procedures on bullying and harassment

Supervisors Duties

Section 117 Workers Compensation Act

“supervisor general duty section”

Obligation of supervisors

requires supervisors to take all reasonable steps to ensure the health and safety of workers under their supervision

Supervisor Duties

Supervisor must take all reasonable steps to prevent where possible, or otherwise minimize, workplace bullying and harassment.

Supervisor Duties

Not engage in bullying and harassment of workers, other supervisors, the employer

Apply and comply with the employer’s policies and procedures on bullying and harassment

Implementation

November 1, 2013

WorkSafeBC activities leading up to this:

Outreach / education

OHS guideline development

Resourcing

Tool kit release

R a c h e l F i s h e r

M a n a ge r C o r p o rate S e r v i c e s

Bullying and Harassment Tool Kit

Objectives

The purpose of the bullying and harassment tool kit is to provide practical advice and information that will assist employers, workers and supervisors in:

• Understanding legal obligations under the Workers Compensation Act and OHS Policies

• Identifying what is, and what is not, bullying and harassment in the workplace

• Taking reasonable steps to prevent bullying and harassment from occurring

• Addressing incidents of bullying and harassment if and when they occur

Tool Kit Development Process

• Jurisdictional and resource scan

• Internal (WorkSafeBC) review and input

• Review and consultation with external subject matter experts

• PPCC Review (worker & employer groups)

• Final revision of materials

• Launch (September 2013)

• Prevention and enforcement activity (November 1, 2013)

Online Tool Kit Resources

The bullying and harassment tool kit:

• Handbook

• Sample policy statement (guide to creating policy statement)

• Fact / Tip sheets (specific topics, industries, audiences)

• Assessment tools (Am I Being Bullied? Is this is a Respectful Workplace?)

• Awareness materials (posters, desk tent cards)

• List of Resources (mediation services, counselling for bullies)

Tool Kit Resources (continued)

The bullying and harassment tool kit:

• Small business package

• sample policy

• sample procedures

• investigation tips

• training suggestions

• 5 Minute Tool Box Talk for leaders

• Awareness presentation for managers

• Multimedia resources (video, animations)

Bullying and

Harassment

Prevention

24

LDB Prevention Initiatives

New Employee Orientation

Mandatory Respect Matters training for all LDB Employees

Public Service and LDB Standards of Conduct

Collective Agreement Language: • Peer to peer bullying and harassment

• Misuse of Managerial authority

LDB Initiatives Continued

Important that LDB employees know:

• What behaviour constitutes bullying and harassment

• The process for filing a complaint (WorkSafe v. internal LDB process)

• Neutral role identified in which to advance a complaint where valid reasons exist as to

why the chain of command could not be followed

• Employer’s expectations with regards to respectful workplace communication and

interactions

• Own behaviour

• Managers behaviour in managing the workplace

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Bullying and Harassment

Investigation Example #1

Worker was directed by his Supervisor to perform a task

Worker complied with the directive however expressed distaste for the task and the Supervisor’s direction

Supervisor followed up with the worker regarding the task and during their discussion “punched” the worker in the chest stating “see that wasn’t so bad was it?”

Worker reported the incident to JOSH Worker Representative alleging violence in the workplace and bullying by the Supervisor

Worker Representative contacted HR to determine how to proceed

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Investigation Approach and Outcome #1

Corporate Safety Advisor, Labour Relations Advisor and Worker Representative jointly conducted the interviews with union representation present

Corporate Safety Advisor and the Worker Representative wrote the joint accident investigation report related to WorkSafe compliance

Labour Relations Advisor wrote the investigation summary related to workplace conduct

No orders were written

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Bullying and Harassment

Investigation Example #2

Long-standing peer interpersonal challenges

Incident involved worker and peer’s husband

Verbal comments were exchanged between the worker and the peer’s husband during the

purchase of product in the liquor store

Worker contacted WorkSafe and reported violence in the workplace and ongoing bullying and

harassment

WorkSafe Officer met with the worker away from the worksite to gather details

Worker notified the Area Manager who initially responded to the worker’s allegations by

involving the Corporate Safety Advisor and the Corporate Security Investigator who contacted

the local police and then began an internal investigation

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Investigation Example #2 Continued

WorkSafe Officer attended the worksite and met with the Employer Representative (liquor store manager) to review the incident and obtain information from the Employer

The Store Manager was not aware that an investigation took place during the Manager’s days off and, therefore, did not provide a Joint Accident Investigation to the WorkSafe Officer

WorkSafe Officer imposed 1 order related to the workers reported incident

• mainly stating that the Employer failed to investigate the incident

PAGE 29

Investigation Approach and Outcome #2

Worker continued to work after the incident and did not report the alleged incident to the Manager until 3 days later

Worker had not complied with any of the risk of violence protocols

• worker engaged in the verbal exchange

• did not report the incident to the supervisor immediately

• no entry made into the accident record book

• no contact made with local police

Corporate Safety Advisor contacted the WorkSafe Officer to discuss the incident and provided the corporate procedures related to violence in the workplace which the employee did not follow

A copy of LR Investigation Report regarding the incident of bullying and harassment was provided to the WorkSafe Officer as well

• Union/Management joint process

Employer proved that an investigation was conducted at the time of the incident

PAGE 30

Investigation and Outcome #2 Continued

Employer argued that the order should be rescinded rather than accept an issuance of a compliance order by WorkSafe

• WorkSafe agreed to rescind the order issued

Subsequent to the conclusion of this incident the worker filed a mental disorder claim with WorkSafe referencing this incident and her claim of ongoing bullying and harassment in the workplace

WorkSafe considered all the details when adjudicating the claim for mental disorder and denied the worker’s claim for compensation

Employer provided the following collateral information to WorkSafe for consideration:

• Mgr had a protocol in place to allow the worker to advise when the peer’s husband was

in the store and was told she did not have to serve him

• Work schedules were adjusted to ensure, where possible, the two employees were not

working the same shift

• ER/Union engaged the LRB to facilitate a relationship enhancement process to bring

resolve to the worker to worker workplace issues

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32

“Reasonable person” definition – what exactly will this mean to Employers, their obligations under the policy and how will this definition be applied?

If a worker files a complaint outside of the WorkSafe complaint/claim process does this require JOSH to be involved?

Workers may attempt to file a WorkSafe claim and then utilize the collective agreement process to advance the complaint further if they’re not satisfied with the WorkSafe claim outcome

Scope of Field Investigator role – when assigned to assist with information gathering related to the claim adjudication will they issue orders as part of their role?

Disclosure of investigation details and impacts to the worksite

Employer Prevention Policy Concerns

Next Steps for LDB

Review all bullying and harassment initiatives to ensure compliance

Determine how bullying and harassment investigations will be conducted

• stakeholders involvement – Worker, HR/LR, JOSH, WorkSafe claims

adjudication, prevention team

Communicate the prevention policy, roles and responsibilities, and how investigations will be managed to all employees of the organization

Provide an internal process to be able to respond to the organizations questions or concerns

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Kat h l e e n F l e m i n g

M a n a ge r C l i e n t S e r v i c e s

Coverage for Mental Disorders

Centralized Mental Health Claims Unit

Established July 1, 2012

8 Case Managers and 4 Team Assistants

2 Team Vocational Rehabilitation Consultants and 7 others throughout BC

Clinical support: Mental Health Specialist, Psychology, Medical and Nurse Advisors

Mental Health Claims Unit (Cont’d)

Teleclaim takes basic information Case Manager conducts inquiries/investigations Field Investigators for complex investigation and

further information gathering

Bill 14 Investigations: Overview

• Currently 6 investigators dedicated to Bill 14 referrals:

• 2 in Richmond

• 1 in Kamloops

• 3 on Vancouver Island

• Investigator selected for his/her training, skills and experience

Bill 14 Investigations: Process

CASE

MANAGER

RE

PO

RT

CLAIMANT

ACCUSED

WITNESSES

EMPLOYER

EVIDENCE GATHERING INVESTIGATOR

RE

FE

RR

AL

ADJUDICATION

Bill14 Investigations: Challenges

Emotional fragility of clients, witnesses, employers

Sensitive subject matter

Lack of legislative understanding by external parties

Navigation of parallel processes (HR/LR, WorkSafeBC, Human Rights)

Mental Health Claims Unit

Health Care Services has:

• arranged for a new Psychology Assessment contract

• worked collaboratively with the Psychologists’ College and Association

• new treatment programs

Bill 14 Claims Summary

0

50

100

150

200

250

Number of Claims

yyyy/mm

Psychological Injury Only Claims

Top Subsectors – 2011*

*Federal government excluded

Subsector Count Percent

Health Care and Social Assistance 275 26.3%

Transportation and Related Services 142 13.6%

Retail 110 10.5%

Accommodation, Food, and Leisure

Service 91 8.7%

Education 55 5.3%

Public Administration 51 4.9%

General Construction 44 4.2%

Business Services 41 3.9%

Metal and Non-Metallic Mineral Products 32 3.1%

Deposit Sector 32 3.1%

MHCU Claims

Top Subsectors: July 1, 2012 - March 31, 2013

Subsector Count Percent Health Care and Social Assistance 463 27.06%

Transportation and Related Services 199 11.63%

Accommodation, Food, and Leisure Service 141 8.24%

Retail 134 7.83%

Education 105 6.14%

Public Administration 90 5.26%

Business Services 81 4.73%

Other Services (not elsewhere specified) 72 4.21%

Deposit Sector 11 (formerly Class 13) 64 3.74%

General Construction 47 2.75%

Wood and Paper Products 34 1.99%

Professional, Scientific, & Tech Service 29 1.69%

Metal and Non-Metallic Mineral Products 28 1.64%

Health Care Subsector

July 1, 2012 - March 31, 2013

CU Count Percent

Acute Care 153 33.05% Long Term Care 84 18.14%

Counselling or Social Services 62 13.39%

Community Health Support Services 48 10.37%

Ambulance or First Aid Services 35 7.56% Residential Social Service Facility 23 4.97% Life and Job Skills Training 10 2.16%

Medical Clinic or Medical Practice 9 1.94% Retirement or Seniors' Home (accom only) 8 1.73%

Alcohol or Drug Treatment Centre 8 1.73% Dentistry or Ancillary Dental Services 7 1.51%

Short Term Care 7 1.51% Religious Organization 5 1.08%

Transportation Subsector

July 1, 2012 - March 31, 2013

CU Count Percent Bus Line, Chart Bus Tours, or Handy

DART

129 64.82%

General Trucking 21 10.55%

Courier or Local Delivery Services 11 5.53%

Fixed Wing IFR Operation 8 4.02%

Ferry Service 4 2.01%

Marine Container Terminal 3 1.51%

Fuel Storage Tank Operation and Fuel

Distribution

3 1.51%

Dump Truck Operation 3 1.51%

Taxi Service 2 1.01%

Garbage,Industr,Recyclable Waste

Removal

2 1.01%

Log Hauling 2 1.01%

Accommodation, Food, and Leisure

July 1, 2012 - March 31, 2013

CU Count Percent Restaurant or Other Dining

Establishment

42 29.79%

Overnight and Short-term

Accommodation

29 20.57%

Building Management, Rental 25 17.73%

Pub, Bar, Night Club, or Lounge 11 7.80%

Casino or Other Gaming Operations 6 4.26%

Organizing a Leisure,Social,Sport Club 5 3.55%

Sports and Entertainment Facility 3 2.13%

Industrial Catering 3 2.13%

Bingo Operations 2 1.42%

Ski Hill or Gondola Ride 2 1.42%

Travel Agency or Accommodation

Registry

2 1.42%

Organizing, Conducting Special Events 2 1.42%

Organizing or Operating a Private Camp 2 1.42%

Retail Subsector

July 1, 2012 - March 31, 2013

CU Count Percent Supermarket 36 26.87%

General Retail 32 23.88%

Large Retail Store 19 14.18%

Convenience Store, Farm Market, Specialty Food

Store

13 9.70%

Jewellery, Eyewear, Clock Repair, Keycut 7 5.22%

Furniture Store 5 3.73%

Home Improvement Centre 5 3.73%

Gas Bar or Service Station 4 2.99%

Auto Parts Supply 4 2.99%

Beer, Wine or Liquor Store 2 1.49%

Car or Truck Rental 2 1.49%

Retail Bakery or Delicatessen 2 1.49%

Education Subsector

July 1, 2012 - March 31, 2013

CU Count Percent Public School District 74 70.48%

University 11 10.48%

College,Teaching University,Trade

School

9 8.57%

Independent Primary or Secondary

School

5 4.76%

Supplementary Education 3 2.86%

Library or Resource Centre 3 2.86%

Public Administration Subsector

July 1, 2012 - March 31, 2013

CU Count Percent Local Government and Related

Operations

63 70.00%

First Nations Operations 14 15.56%

Law Enforcement 13 14.44%

Business Services Subsector

July 1, 2012 - March 31, 2013 CU Count Percent

Financial Services 36 44.44%

Insurance, Actuarial or Bonding Services 19 23.46%

Publishing (with printing) 5 6.17%

Advertising or Public Relations Services 3 3.70% Professional or Employers' Association, 3 3.70%

Union 2 2.47% Research Services 2 2.47% Law, Notary, Supplementary Legal Services 2 2.47%

Writing, Publish, Map Prod (no print) 1 1.23%

Environmental Conservation Services 1 1.23%

Accounting 1 1.23% Private Investigations, Collection, Bailiff 1 1.23%

Broker (nes) or Wholesale (no stock) 1 1.23% Product Demonstration 1 1.23% Clerical Worker Supply 1 1.23%

Employment,Dating Agency,Related Testing 1 1.23% Real Estate Agency 1 1.23%

Construction Sector

July 1, 2012 – March 31, 2013

Subsector Count Percent General Construction 47 75.81%

Road Construction or Maintenance 13 20.97%

Heavy Construction 2 3.23%

MHCU Claims Eligibility Decisions

July 1, 2012 – April 27, 2013

Claim Eligibility Decision Count

Allowed 334 Disallowed 776 No adjudication required 143 Pending 265

Rejected 11 Suspended 548

Claim 1

A manager in a retail store reports what she describes as a campaign of harassment by the new district manager since the latter’s appointment 6 months earlier.

The Case Manager took a detailed history in which the worker did not report any abusive or threatening behaviours but indicated that she is having trouble sleeping and concentrating because her continued employment has been under review by the DM for 3 months.

She describes the harassment as being singled out among the managers for having to meet every 2 weeks with the District Manager to review her team’s sales, salary and overtime costs, its absenteeism and its contribution to corporate profits. The meetings are very tense and unfriendly although there is no yelling or swearing or other abusive conduct. She feels the DM dislikes her and she has been singled out for these meetings.

The employer denies the manager has been singled out and says that she is one of 3 managers who receive “regular performance coaching” because their teams are performing below expectations. Acknowledges that the worker is exhibiting signs of being under intense pressure but says the “coaching” sessions are necessary to ensure survival of the 3 retail units and the continued employment of the manager.

Claim 2

The worker is a service worker in a large institution and reports that he has been the target of a systematic harassment campaign by some of his co-workers.

He says the harassment which both management and union have failed to put a stop to include:

• unflattering and obscene comments were written about him on a bulletin board on more than one occasion

• some workers avoid or ignore him or appear to be making comments about him behind his back

• he is frequently excluded from invitations to social gatherings

• his tools frequently go missing and sand or liquids are placed in his tool box

• his tires have been flattened on several occasions

• a threatening note left on his locker stating “we know where you live”

The worker has some theories about who the main instigators might be and why, but has no proof. Investigations conducted by management, the union and WorkSafeBC confirm most of the incidents, but can’t pinpoint the sources or cause.

55

Mental Disorder Claims Experience

57

LDB Claim Statistics

7 claims for mental disorder in total

# of claims up to July 1, 2012 = 4

# of claims since July 1, 2012 = 3

1 of 7 claims is related to bullying and harassment • Filed after July 1, 2012

• Claim was denied, Review Division upheld decision, currently awaiting WCAT hearing

Claim acceptance or denial decision timelines currently approximately 6-8 weeks

LDB expected a much higher volume of WorkSafe claims following the announcement of Bill 14

58

Steps the Employer Should Take

Contact the worker(s) immediately • Offer assistance and support

• Advise that an investigation into their bullying and harassment complaint will take place

• Advise worker of their duty to participate in the investigative process

Identify opportunities to accommodate the worker/complainant • Mitigate claim costs/duration - Notify the WorkSafe Case Advisor or the Nurse Advisor of

alternate work options available such as adjusting work hours or worksite locations

• Focus on degree of disability versus diagnosis

• Provide collateral data regarding the incident by fax

Conduct an investigation into the allegations • Meet with the Complainant to obtain details of the incident(s)

• Identify and interview witnesses

• obtain the Respondent’s response to the allegations

Steps the Employer Should Take

Conclude the investigation and determine the outcome quickly • Is there misconduct?

• Was the complaint filed in bad faith?

• Advise the Complainant and Respondent of the outcome of the investigation

Determine if further action is required by the Employer • Relationship between Complainant and Respondent

• Worksite concerns that need to be addressed

• Additional training or support required

Continue to work with the Case/Nurse Advisor to determine return to work opportunities while adjudication of the claim or the absence continues

Important to note that WorkSafe’s acceptance or denial of a claim does not determine if bullying and harassment took place. Employers must investigate to determine if the allegations are factual and respond appropriately.

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What are key insights derived from this session and how can you

implement them in your workplace?