STRESS, PRECARIOUS EMPLOYMENT AND WORKERS ’ COMPENSATION : ANALYSIS OF CASE-LAW FROM QU É BEC

1. STRESS, PRECARIOUS EMPLOYMENT AND WORKERS’ COMPENSATION:ANALYSIS OF CASE-LAW FROM QUÉBEC Katherine Lippel CRC in Occupational Health and Safety Law University of Ottawa APA: Work, Stress and Health 2008

2. Structure of presentation • Legal framework for recognition of stress claims in Québec. • Precarious employment as a cause of compensable illness

3. Methodology 1 • Data bank including 357 appeal judgments rendered by the Commission des lésions professionnelles (C.L.P.) between 04/1998 - 09/2002. • Acute and chronic stress claims having given rise to mental health problems. • 100% of judgments rendered for that period. • Databank using Filemaker software; cases in databank analysed with regard to 452 fields.

4. Methodology 2 • Selective analysis of case law rendered between 2003-2007 with regard to claims for mental health problems filed by workers: • in precarious employment relationships • On call, casual, part time, temporary employment agency • in organisations in the process of restructuring, including mergers, downsizing etc. • Total number of cases analysed from 2003-2007: • 53 additional decisions

5. Access to workers’ compensation benefits for psychological injury attributable to work-related stress in Québec

6. Quebec compensation case law recognizes that mental health can be compromised By workplace stressors • Acute stress: single, significant events • Armed robbery • Chronic stress: a series of events whose cumulative effect has undermined the mental health of the worker

7. Claims for acute and chronic stress1996-2005 CSST data

8. Accepted Claims for acute and chronic stress1996-2005 CSST data

9. Success rate in appeal(1998-2002) • Psychological harassment 29.6% • Discriminatory harassment 52.2% • Other sources of stress 52.6%.

10. Employment injury • Industrial accident • Occupational disease

11. Industrial accident: s. 2 (AIAOD) • «a sudden and unforeseen event, attributable to any cause, which happens to a person, arising out of or in the course of his work and resulting in an employment injury to him»

12. Vast majority of the case law CLP/CALP • «the accumulation of events arising out of or in the course of employment, which, considered individually may seem banal, can nonetheless, by their cumulative effect, become significant and meet the legislative requirement for a sudden and unforeseen event».

13. Chronic stress as work accident • Necessary to demonstrate that the stressors, individually or cumulatively, go beyond the «normal» workplace stressors to which workers are exposed in the modern workplace.

14. «means a disease contracted out of or in the course of work and characteristic of that work or directly related to the risks peculiar to that work;» No case has found that mental health problems are characteristic of work, but they can be related to the risks peculiar to that work. Occupational disease

15. Mental Health problems accepted as Occupational diseases (appeal)

16. Basis of acceptance 1998-2002(appeal decisions) • 91% of accepted cases were accepted as illnesses attributable to work accidents; 9% were accepted as occupational diseases.

17. Precarious employment as a cause of compensable illness: accepted claims

18. Part-time workers marginalized • Ostracism of worker who tried to defend the rights of part-time workers in his union...union and management all respond with hostility • Series of threats and reprisals constitute a work accident.

19. Sub-contracting and suicide • Subcontractor for Canada Post, working harder and harder in difficult conditions to answer increasing demand with no increase in resources. Diagnosed with anxiety disorder, he is forced to take time off. His position is abolished, and he’s asked to come in and train his replacement from Canada Post. He commits suicide. Estate’s claim is accepted.

20. Tasks Increased workload Conflicting priorities Computerization of case management without proper training of personnel Environment Colleagues and supervisors all under stress Work environment more volatile Clientele more aggressive because of poor service In 1995 the Canadian government cut 40,000 jobs in the federal public sector

21. Veterinarian for public food inspection agency. Colleague leaves and is not replaced, claimant assumes his workload as well as her own. Worker diagnosed with major depression. Claim accepted in appeal as an occupational disease. Despite the fact that she did not work more hours, the increased responsibility and workload are risks that led to her illness. Restructuring: abnormal working conditions: understaffing

22. Mergers in the health sector: accepted claims • Québec healthcare sector was considerably restructured leading to a shortage of nursing personnel and continuous changes in personnel («overdose of adaptation») • Transfers (without much training): 7 services in 6 years • Mergers of departments without care for impact on relationships and services • Conflicts between groups of workers under competing supervisors

23. «change of staff, new technology, suppression of positions and change in workload are all usual working conditions,» but... It is not normal when a series of such conditions leads to illness of a retail sector worker whose workload increased to the point where she no longer took breaks and she still couldn’t get her work done. Work intensification (Private sector):abnormal when requirements impossible

24. Precarious employment as a cause of compensable illness: refused claims

25. Stress of being on call: a normal working condition • Trucker working for a temp agency, on call, worked 45-55 hours per week, always called at the last minute • Stated he couldn’t refuse a call or he wouldn’t be called again • Variability of schedule leading to sleep disruption and somatic disorders does not depart from normal working conditions.

26. Precarious employment...a normal condition of work • Contract employees in competition with each other for access to scarce permanent positions are not subjected to unusual working conditions. • «The precarious status of employees affected their stress levels and caused insecurity. Precarious status is neither fortuitous nor infrequent in the labour market.» ...compensation denied.

27. Conclusions • As precariousness, work intensification and non-standard employment become more and more common, they are perceived to be normal. • Claims for illness that results from these conditions may thus be refused because not attributable to unusual conditions...

28. Conclusions...2 Some cases recognize precarious employment, restructuring, work intensification and poorly planned mergers as risks that may lead to occupational disease...a new trend? Implications for OHS obligations of employers...