The Standard, the Law and CUPE

Legal Opportunities for addressing Workplace Mental Injuries

Martin Shain S.J.D. CUPE Ontario Injured Workers/Health & Safety Conference

September 9th 2015

The problem we face: headlines

20% of employed people say they work in psychologically unsafe working environments

Mental injuries represent between 25% and 33 % of all mental disability claims

Workplace mental injuries cost society about 2% of GDP

Law provides some after the fact remedies for individuals but requires little in the way of prevention

Neighbour at Work Centre

Neighbour at Work Centre

Conduct that often leads to mental injury when it’s allowed to go on for a long time (mostly negligent/reckless): 10 points

1.Expecting too much of workers with no heed to the consequences2.Withholding discretion over how work is done where no business rationale exists3.Refusing to acknowledge contributions or to assign credit4.Demonstrating bias in distribution of work or rewards5.Failure to provide timely and relevant information6.Refusing to allow sufficient participation in decisions 7.Withholding psychological support or material resources to get the job done (where such exist)8.Ignoring the basic needs of workers for fair play/due process9.Failing to identify and correct mentally abusive situations10.Failing to accommodate the needs of the mentally ill/injured

Current Legal Remedies for Unionized Workers

Personal Compensation (fixing the person)

•Grievances (wrongful dismissal/discipline etc., personal harassment)•Human Rights (failure to accommodate, discrimination/harassment etc.)•Workers compensation (chronic stress/mental injury beginning to be recognized)•OH&S retaliation claims (possibly can be applied in psychological safety cases)

Prevention and Remediation (fixing the situation)

•Human Rights systemic/public interest remedies (awarded with personal damages) •OH&S prevention (Bill 168 Ontario, Bill 14 BC)•Collective Agreements referencing the new Standard on Psych Safety (Z1003)

Legal Gaps in Mental Health Protection #1

If harmful conduct of the sort described in the 10 points does not amount to the legal definition of bullying, harassment or discrimination there is no legal remedy even when it results in foreseeable mental injury (very few adjudicators push the envelope).

There is no legal requirement for employers to be on the lookout for the 10 signs of an actual or emerging psychologically unsafe system of work unless it’s “poisoned” or it’s in the Collective Agreement – typically it isn’t.

There’s no employer duty to fix these situations

So… there’s a variety of mentally injurious situations that can’t be remedied by legal means at present

Legal gaps in mental health protection #2

Adjudicators often claim there is no legal description of a “psychologically safe system of work” so they have no clear way of determining if the duty has been breached. Counsel don’t help much.

They may be right.

But now we have a new national Standard on this that DOES define what it is: problem is it’s voluntary

The Standard*

Tort law Employment Contract law

OHS statutes WC statutes

Human Rights law

The Standard defines the duty to provide a psychologically safe system of work

Employment Standards legislation

Labour Law

*“National Standard on Psychological Health and Safety: guide to implementation CSA Z1003/BNQ 9700”

What is a Psychologically Safe System of Work?

• One that systematically identifies and fixes situations which could foreseeably lead to significant injury to worker mental health resulting from negligent, reckless or intentional acts and omissions (as in the 10 points)

- or more simply -

•One in which every reasonable precaution is takento protect the mental health of workers and prevent mental injury[= “proactive due diligence”]

23-04-20 10

Assess and Address!The Standard basically describes a management system directed at assessing and addressing situations in the workplace that could foreseeably give rise to mental injury

More specifically the Standard says….

Employers shall use a systematic approach to assess and address risks to the psychological health of workers that arise in whole or in part from certain ways in which work is organized and people are managed (as in the 10 points)

In other words, they must set up and maintain a psychologically safe system of work

“Assess and Address!”

Assessment – step #1 toward psychological safety

Examples: MIT, PF13, SSIX

Or …. repurposing existing survey results

But…right now there’s no legal requirement to do any of this unless it’s in the collective agreement

Failing that, we need new regulation….

The Standard calls for a “careful workplace”

Carefulness: making every reasonable effort to be aware of how our conduct affects others, and to understand some basic things about their rights, needs and interests. Carefulness reflects an attitude of vigilance and a desire to be aware of the consequences of our acts and omissions to the extent of avoiding reasonably foreseeable harm to others within our circles of influence. [prevention of negligent harm is the floor requirement]

Carelessness: not caring whether or how your conduct or that of people for whom you are responsible affects others, operating as though relationships at work don’t matter. Carelessness in this sense reflects an attitude of indifference toward how you affect others and toward the consequences of your acts and omissions.

Conduct the Standard aims to prevent

Negligence: failing to care or consider in what ways your conduct or that of the people for whom you are responsible does, or might create foreseeable risks to the mental health of others given what a reasonable person in your position should know about those others.Recklessness: knowing the risks created by your conduct or that of others for whom you are responsible and wilfully ignoring them.Intention: meaning to inflict mental suffering through your own conduct or through the agency of others.

Carefulness [proactive due diligence]

Carelessness

Negligence

Recklessness

Intention

Toward Psychological

Injury

Toward Psychological

Safety

“Shifting the Culture”

The Standard and the Careful Workplace

Existing opportunities for achieving psychological safety using the Standard* and other strategies

Importing CSA Z1003 into Collective Agreements, e.g. PSAC and the MOU

Other unions

“Deeming” with Owen Shime and the Supreme Courtdeeming (Parry Sound case)double-deeming (TTC case)

Pushing General Duty Clause interpretationOntarioBC

But more is needed……….

Need for regulation: implications of leaving the Standard voluntary(protection of mental health as a right, not a benefit; loss of social impact)

•Code of Practice in Ontario

•Regulation of assessment as a minimum requirement (e.g. TUC in UK) E.g. MIT, PF 13, SSIX

FUTURE OPPORTUNITIES: WHAT CUPE COULD DO

Press for regulation of assessment of risk, like TUC in UK(e.g. Mental Injury Toolkit; PF 13, SSIX etc.) Be at table for drafting proposed Ontario Code of Practice on harassment

Press for employer standard of care based on avoidance of reasonably foreseeable harm as the norm by importing Standard into Collective Agreement (like PSAC)

CUPE could invoke the Standard as best practice in grievances to define the duty of care the employer should have met (avoidance of reasonably foreseeable harm)

Further reading

Weathering the Perfect Legal Storm (A Bird’s Eye View)

Watch for “The Careful Workplace” (Carswell Publishers 2016)