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B.C. worker who was shown inappropriate video, questioned about sexuality entitled to WCB: Tribunal

by HR Law Canada

B.C.’s Workers’ Compensation Appeal Tribunal (WCAT) has reversed a previous ruling by the Workers’ Compensation Board (WCB) in a notable case involving a shipper who claimed to have developed a mental disorder due to workplace bullying and harassment — predominantly as a result of being shown an inappropriate video and being pressed about his sexual orientation.

The worker, employed by a manufacturer, filed a complaint alleging that he experienced several instances of bullying and harassment from his charge hand between January and March 2022. These included being subjected to unsafe work practices and improper handling of his complaints by the employer’s HR department.

The video incident

At the end of January 2022, the worker was shown an explicit video by the charge hand on his personal cell phone while at work. The video depicted a person initially wearing only a bra who then exposed their penis. The worker, a practicing Muslim, found this highly inappropriate and offensive, as it conflicted with his religious beliefs.

Additionally, the charge hand’s subsequent questioning of the worker’s sexual orientation made him extremely uncomfortable. The worker did not report the incident to his supervisor initially to avoid causing issues at his new job. A colleague also saw the video, and was sent it via WhatsApp, but the evidence was lost when his phone data was wiped clean.

Claim initially denied

Despite acknowledging the worker’s mental disorder diagnosis, the WCB initially denied the claim, attributing the disorder predominantly to the employer’s investigation outcomes rather than the alleged bullying and harassment itself.

The WCB’s decision was based on Section 135(1)(c) of the Workers Compensation Act, which excludes mental disorders caused by employer decisions relating to employment.

In its appeal, the employer argued that the video incident never occurred and supported the WCB’s original conclusion. However, the WCAT panel found the worker’s testimony and evidence provided by a co-worker, who corroborated the claims, to be credible. The co-worker had also received inappropriate videos from the charge hand and testified about witnessing the charge hand’s inappropriate behavior toward the worker.

“A short time after seeing the video on [the charge hand’s] phone, [the charge hand] repeatedly asked the worker whether he was ‘interested in men?’ and ‘are you gay?’ He said that while he is not, this made him feel extremely uncomfortable as these is questions are highly inappropriate for the workplace and completely unrelated to his work,” the co-worker was quoted in the ruling.

The tribunal said the video incident constituted a significant workplace stressor. This stressor was found to be the predominant cause of the worker’s mental disorder, satisfying the requirements under Section 135(1) of the Act.

Employer’s investigation aggravated disorder

The tribunal concluded that while the employer’s investigation and the subsequent outcomes further aggravated the worker’s mental disorder, the initial disorder was predominantly caused by the significant workplace stressor, making the worker eligible for compensation.

“I find that the subsequent aggravation of that compensable mental disorder was predominantly caused by the HR investigation and outcome, which is captured under the employer-decision exclusion. It will be for the Board to determine the nature and extent of any compensation that flows from my decision,” it said.

For more information, see A2301761 (Re), 2024 CanLII 56574 (BC WCAT).

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