Martin Shain, SJD, Director and Founder of the Neighbour @ Work (N@W) Centre, Caledon, ON. Dr. Shain holds a doctorate in Law, and is a Professor with the Dalla Lana School of Public Health at the University of Toronto, and an Adjunct Professor in the Faculty of Health Sciences at Simon Fraser University.

 

In recent years, Dr. Shain has focused on addressing the emerging law regarding the "psychologically-safe workplace" in two papers commissioned by the Mental Health Commission of Canada (MHCC).

 

The first report says: "A psychologically safe workplace is one that does not permit harm to employee mental health in careless, negligent, reckless or intentional ways." More simply, it is "one in which every practical effort is made to avoid reasonably foreseeable injury to the mental health of employees."

 

All employers have a duty to provide a psychologically safe workplace, including the mom-and-pop shop on the corner. This message is percolating, but very slowly.

 

The second MHCC paper concluded that the law regarding workplace mental health is evolving very quickly in seven areas – workers’ compensation, employment standards, occupational health and safety, labour law, employment contracts, the law of torts (negligence), and human rights.

 

The message to employers is that if you see seven different legal torpedoes coming at you, you need to be vigilant to avoid the explosions that can sink your business.

 

As a general foundational statement, be vigilant. Manage your risks. Assessment is the first duty, and the second is to address findings with actions. Look at the way work is organized and managed. This will tell you about places where work demands are excessive or take too much mental effort, or where people do not have enough control, and are not adequately appreciated for their work.

 

Look for situations and conditions indicative of underlying interpersonal conflict. We have developed two tools – these and others are available at www.guardingmindsatwork.ca. The first includes four work characteristics ("stressors and satisfiers") – demand, control, effort, reward – to which we added fairness and supervisory support. The other tool is a comprehensive audit completed by a human resources professional or business owner.

 

Communication – defined as collaborative information sharing and discussion – is the biggest single thing an employer can do to identify serious, emerging problems.

 

In Ontario, Bill 168 has added harassment and violence to the Occupational Health and Safety Act. These laws have also taken effect in Manitoba and Saskatchewan: protection of mental health is on the same footing as physical health.

 

In Human Rights legislation, there is greater uniformity across Canada. The underlying law is very similar, but interpretation and remedies vary. Ontario and British Columbia laws perhaps go the furthest.

 

Rules and enforcement through Workers’ Compensation vary as well. Some provinces (BC, ON, NS) have allowed certain chronic stress claims in instances where mental health claims have arisen from stress.

 

Quebec is different in that it approaches mental health issues from an Employment Standards framework, focusing on hours and conditions of work. Such disputes are heavily litigated there, with different remedies.

 

It’s now easier to trip over the legal standard. Let’s consider harassment, which includes behaviours that probably wouldn’t have been entertained by the law ten years ago. Then, only the absolute worst transgressions would attract attention. Now even excessive job demands can be seen as harassment if it’s gone too far. Human Rights Commissioners will not only issue orders for employers to fix the problem, but tell them how to do it. At that point, you’ve been boarded; your ship has been taken over.

 

We built Guarding Minds at Work for employers of all sizes. It gives leaders and managers what they need to know to move to effective action. Act on what you notice or suspect. The courts often award damages based on what you ought to have known.

 

Even though it may take time to plan, assess, implement and get it right, this is expected and will be recognised by both the law and perhaps more importantly, by your employees.

 

Remember that disputes are a major and often costly distraction even if no legal remedy is ultimately required. Protracted disputes divert energy that should be directed to achieving the organization’s goals.