The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable legislation

The worker is employed by a federal government agency or department and her claim is therefore adjudicated pursuant to the GECA. Under the GECA, an employee who is caused personal injury by an accident arising out of and in the course of employment is entitled to compensation. The GECA defines accident as including “a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause.”

Subsection 4(1) of the GECA provides:

4(1) Subject to this Act, compensation shall be paid to

(a) an employee who

(i) is caused personal injury by an accident arising out of and in the course of his employment; or

(ii) is disabled by reason of an industrial disease due to the nature of the employment; ….

Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under the WCA.

Worker’s Position

The worker was self represented at the hearing. It was submitted that during the period April 2006 to July 2007, she was subjected to bullying and harassment at work which caused her to become disabled from working. She claimed that the situation at work caused her to have reduced immunity to infection (e.g. pneumonia) and triggered a flare-up of irritable bowel syndrome. The worker’s evidence was that she commenced working at the subject federal government office in February 2006. She had been employed by various federal government agencies for many years prior in a variety of locations, and she obtained this job via a priority transfer. The classification for the position was one level lower than her last placement.

In the worker’s opinion, things progressed satisfactorily until approximately April 2006 when her manager became increasingly unpleasant and critical with her. The situation deteriorated and the worker believed herself to be the subject of bullying by the manager. Specific incidents listed by the worker included:

• The worker was requested to sign an action plan at the commencement of the work assignment. She felt that she should not be required to sign any probation document so she refused. The manager stated that such a refusal would be noted.

• In mid April, the manager became impatient and quite rude in dealing with her. He claimed she was making all kinds of mistakes and was not doing a very good job. When she asked to be shown the mistakes, the manager became defensive and told her not to question him.

• When filling in a particular work order the worker asked another supervisor for information she felt was missing. The manager told her that she was not to consult with any other supervisor as she was to come straight to him with questions or problems.

• While the manager was on vacation, two senior supervisors had shown her different ways to enter data. When the manager returned he claimed that information was sent incorrectly and he had to redo the errors that were discovered. The worker stated that she had not been told about them at the time. She was also reminded that she was only to do the work as she had been told.

• Throughout May 2006, two supervisors were assigned to assist in tutoring the worker. This resulted in weekly evaluation meetings during which the manager was continually critical and gave negative comments about her lack of progress.

• In June 2006, the manager noted that the way she was speaking on the phone was not correct. She was told “I am your supervisor and you are given cheat sheets to read on how to talk to someone.” He then pointed a pen at her three times and said: “You are working for (department) now and you will use the proper addresses over the phone.”

• At the end of June, 2007, the manager told her that her phone had been changed to one without call display to force her to be more professional by not knowing who was calling. This conversation took place in his office with the door open to the common work area and delivered in an overly loud tone. She felt humiliated and requested the door be closed when being criticized. The task of initial phone reception was later redirected to a co-worker’s desk and the worker was told by the manager not to touch the phone as some of the calls were being incorrectly transferred.

• In late July she was informed that another person would be coming over for half days to go through the computer program with her. The manager noted: “We need some professionalism here and you need to learn how the system works.”

• At one time, the worker was told not to talk to (a co-worker) and she was to get back to her desk. She was told that her place of duty was in the front work area. The manager also wanted to know where she was at all times and where she went when she left her desk. The manager then told her he would not forget anything she had done and her refusal to sign his action plan.

Eventually, in September, 2006, the worker was transferred to another department within the same building where she would not have direct contact with the manager. The manager was, however, still in the same building and they would see each other periodically. The new department remained within the manager’s area of responsibility and her immediate supervisors in the new department still reported to the manager. The worker felt she was under intense scrutiny in the new department and advised that she had been informed by her supervisors that they had received instruction from upper management to: “keep an eye on her.” The worker felt unfairly monitored and she feared that she may lose her job. In March, 2007, when she was hospitalized for pneumonia, she was visited by several co-workers, and she felt that these visits were motivated by a direction by the manager to keep tabs on her and to verify whether or not she was truly unwell.

After she recovered from pneumonia, the worker returned to her position at reduced hours. She found the situation to continue to be extremely stressful. She was also involved in filing a complaint against a co-worker, and the worker felt that the investigation by management of her complaint was unfair to her, particularly as the person she complained about did not have to attend a meeting regarding the complaint and answer to her allegations. Finally, the worker could not take it anymore and she begged her physician to give her a note to excuse her from work until July, 2007. The manager and another member of management were due to be transferred in July, and the worker thought she would only be able to return to work after the manager was gone.

On July 3, 2007, the worker returned to her position and she testified that everything has gone smoothly since then. She has not suffered any recurrences of her stress-induced symptoms and there is now a pleasant atmosphere at work.

The worker was seeking coverage for the periods of time when she was unable to return to the workplace due to the bullying and harassment she described.

Employer’s Position

A representative from the employer was present at the hearing. He made two points. First, he acknowledged that the worker did feel stress and submitted that the majority of her stress was a result of her feelings, which was contributed to by both her perceptions of mistreatment as well as the constructive criticism she received. The worker felt threatened and thought her livelihood was at risk. This could understandably cause anyone stress. It was pointed out, however, that no investigations to date have found management to have been in the wrong.

The second point was characterized as “legal semantics” and it was submitted that the GECA takes its cues from the WCA and in circumstances such as these, while stress can be an occupational disease, it has to be an acute response to an event. In the present circumstances, there was no acute event, per se. Accordingly, there was no legal basis to say that the worker suffered an occupational injury.

Analysis

The issue before the panel is whether or not the claim is acceptable. In order for the appeal to be successful, the panel must find that the worker is entitled to compensation pursuant to subsection 4(1) of the GECA because either

(a) she was caused personal injury by accident as per subsection 4(1)(a)(i); or

(b) she was disabled by reason of an industrial disease as per subsection 4(1)(a)(ii).

Accident under Subsection 4(1)(a)(i)

The definition of accident under the GECA is as follows:

“accident” includes a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause.

The panel accepts that a pattern of either personal or sexual harassment may constitute an “accident” within the meaning of the GECA definition. Even though the definition refers to a singular act, a series of ongoing incidents can cumulatively constitute an accident. What is important is that there is willful and intentional conduct on the part of a third party which causes injury to the worker.

The panel notes, however, that the inability to cope with the demands of a job, no matter how stressful, does not constitute an accident. Similarly, labour relations issues related to changes in an employment situation (e.g. discipline, demotion or termination) also do not amount to an accident.

The panel has carefully considered the employment situation as described by the worker and the representative from the employer. It is clear that the style of management in place at the relevant time and the worker’s sensitive nature were not compatible. There was definitely a clash of cultures in the workplace. It also appears that there was poor communication and unfortunately, certain acts by the supervisor and management generally were perceived by the worker to be bullying behaviour. Overall, however, the panel did not find there to be a pattern of conduct sufficient to constitute harassment which would qualify as an accident under the GECA definition. As noted in the literature provided by the worker, there is a “fine line” between strong management and bullying.

On review of the behaviour described by the worker as bullying, the panel found that the incidents were virtually all related to the worker’s job performance. The conduct of the manager, while domineering and at times rude, seemed primarily targeted at improving the way in which the worker carried out her duties. Indeed, at the hearing, the worker candidly admitted that she was having difficulty meeting the demands of the position, which involved working on a complex computer program. Notably, the panel observed that none of the conduct complained of involved berating or criticism regarding issues unrelated to work and job performance.

After September, 2006, the employer created a new position for the worker in an area where she would not be required to have any direct interaction with the manager. Despite the perception by the worker of continued bullying executed through the management and supervisor levels, the panel found that once the worker was out of direct contact with the manager, it was even more difficult to identify conduct which could be considered to be part of a pattern of bullying or harassment.

For the foregoing reasons, the panel finds that the worker was not caused personal injury by an accident arising out of and in the course of employment, within the meaning of the GECA.

Industrial Disease under Subsection 4(1)(a)(ii)

The definition of industrial disease under the GECA is as follows:

“industrial disease” means any disease in respect of which compensation is payable under the law of the province where the employee is usually employed respecting compensation for workmen and the dependants of deceased workmen.

Thus, for claims relating to federal employees in Manitoba, the GECA adopts the definition of “industrial disease” as it appears in the WCA. The disease for which compensation is payable under the WCA is termed “occupational disease” rather than “industrial disease”, but the difference in terms has no bearing on this decision. The definition of “occupational disease” as contained in the WCA is as follows:

“occupational disease” means a disease arising out of and in the course of employment and resulting from causes and conditions

(a) peculiar to or characteristic of a particular trade or occupation; or

(b) peculiar to the particular employment;

but does not include

(c) an ordinary disease of life; and

(d) stress, other than as an acute reaction to a traumatic event.

According to the definition, stress is not compensable in Manitoba unless it is an acute reaction to a traumatic event. Therefore, in order for the worker’s appeal to be successful, we must find that her stress was an acute reaction to a traumatic event.

In the panel’s opinion, the facts of this case do not support a finding that there was an acute reaction to a traumatic event. In our view, the worker’s inability to work was caused by a course of interactions at work which, cumulatively, caused her to suffer from stress which was disabling. It was the ongoing demands of her job, rather than a single notable event or occurrence which caused her condition.

As we have been unable to find that there was either an accident or an industrial disease, we are unable to find that the worker’s claim for compensation is acceptable. The worker’s appeal is therefore denied.