The Standard, the Law and CUPE Legal Opportunities for addressing Workplace Mental Injuries

1. 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

2. 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

3. Typical Forms of Mental Injury* • Depression • Anxiety • Burnout • PTSD • *not always the same as mental illness Neighbour at Work Centre

4. Conduct (usually intentional) that foreseeably leads to mental injury • Harassment • Bullying • Mobbing • Discrimination Neighbour at Work Centre

5. Conduct that often leads to mental injury when it’s allowed to go on for a long time (mostly negligent/reckless): 10 points Expecting too much of workers with no heed to the consequences Withholding discretion over how work is done where no business rationale exists Refusing to acknowledge contributions or to assign credit Demonstrating bias in distribution of work or rewards Failure to provide timely and relevant information Refusing to allow sufficient participation in decisions Withholding psychological support or material resources to get the job done (where such exist) Ignoring the basic needs of workers for fair play/due process Failing to identify and correct mentally abusive situations Failing to accommodate the needs of the mentally ill/injured

6. 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)

7. 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

8. 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

9. The Standard defines the duty to provide a psychologically safe system of work Labour Law Tort law Employment Contract law The Standard* OHS statutes WC statutes Employment Standards legislation Human Rights law *“National Standard on Psychological Health and Safety: guide to implementation CSA Z1003/BNQ 9700”

10. 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 taken • to protect the mental health of workers and prevent mental injury[= “proactive due diligence”]

11. 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

12. More specifically the Standard says…. Employers shall use a systematicapproach to assess and addressrisksto 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!”

13. 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….

14. 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.

15. 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.

16. The Standard and the Careful Workplace Carefulness [proactive due diligence] Carelessness Toward Psychological Injury Negligence Recklessness Toward Psychological Safety Intention “Shifting the Culture”

17. 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 Court deeming (Parry Sound case) double-deeming (TTC case) Pushing General Duty Clause interpretation Ontario BC

18. 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

19. 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)

20. Further reading Weathering the Perfect Legal Storm (A Bird’s Eye View) Watch for “The Careful Workplace” (Carswell Publishers 2016)