Source: Stress at Work, Mental Injury and the Law in Canada: A Discussion Paper for the Mental Health Commission of Canada (PDF)
Martin Shain S.J.D. and Carla Nassar LL.B. August 15th 2008
Overview
The Facts on Jurisprudence
A new dimension in occupational health and safety is emerging in Canada’s legal system.
It is the duty of employers to provide a “psychologically safe workplace” (A psychologically safe workplace is one that allows no harm to employee mental health in careless, negligent, reckless or intentional ways).
The psychologically safe workplace concept, legally, is concerned with the concept of “mental injury”:
- Claims in this area tend to relate to the fact that there has been ongoing employer “bad behaviour” during the duration of the employment relationship;
- This ongoing behaviour pattern leads to a mental injury.
Mental injury does not necessarily equal mental illness.
Mental injury = harm to mental health [mental suffering] that significantly affects the ability of employees to function at work and at home.
Employers may become liable for such injuries if these are found to result from their careless negligent, reckless or intentional acts and omissions.
- Remedies: financial awards and/or remedial orders against employers;
- Financial awards made by courts and tribunals, and in out of court settlements, are increasing and can be substantial – but, may be reduced on appeal;
- The sources of liability are multiplying as new legal bases for it are articulated by courts, tribunals, and legislatures. Employers must ensure a psychologically safe workplace as a natural extension of the traditional healthy and physically safe workplace;
- Organizations need to recognize that ensuring a psychologically safe workplace is a corporate governance issue – i.e. they must set policy, provide direction and resources, and measure results;
- Employers must ensure a psychologically safe workplace as a natural extension of the traditional healthy and physically safe workplace;
Organizations need to recognize that ensuring a psychologically safe workplace is a corporate governance issue – i.e. they must set policy, provide direction and resources, and measure results;
The Facts on Ethics
Ethical considerations are key drivers for many leading organizations:
- Financial – Ethical investment funds are looking for positive and innovative approaches in employee health, safety and environment;
- Values – An ethical imperative exists to “do it right”.
- Liability – Boards of Directors are increasingly providing direction to organizations on all aspects of risk management including health;
- Expectations – Employees are expecting organizations to meet their needs with respect to key workplace health aspects – including those that impact on mental health.
