Best Advice on Stress Risk Management in the Workplace - Part 2

What Are the Implications of This Knowledge?

Is There a Legal Duty to Abate Excessive Stress at Source Under Occupational Health and Safety Rules Concerning Due Diligence?

Employers must take every precaution reasonable under the circumstances to protect their workers' health and safety. This duty of due diligence has a clear basis in both statute and common law. See, for example, Ontario's Occupational Health and Safety Ac t, R.S.O. 1990, c. O.1, sections 25(2)(h) and 66(3), and the leading Supreme Court of Canada cases of Marshment v. Borgstrom, [1942] S.C.R. 374, and Ainslie Mining and Railway Company v. McDougall (1909), 42 S.C.R. 420.

Historically, this general duty has been applied to the physical aspects of workers' health and safety, but, as the judge said in the English case of Walker v. Northumberland County Counci l, [1995] 1 All E.R. 737 at 749: "there is no logical reason why risk of psychiatric damage should be excluded from the scope of an employer's duty of care ... ."

Saskatchewan has consciously adopted a broader view of health and safety in its governing statute, the Occupational Health and Safety Ac t, S.S. 1993, c. 0-1.1, section 2(1)(p), where "occupational health and safety" is defined as:

1. the promotion and maintenance of the highest degree of physical, mental and social well-being of workers;
   
   
2. the prevention among workers of ill health caused by their working conditions;
   
   
3. the protection of workers in their employment from factors adverse to their health;
   
   
4. the placing and maintenance of workers in working environments that are adapted to their individual physiological and psychological conditions; and
   
   
5. the promotion and maintenance of a working environment that is free of harassment ... ."
   
   

The duty to provide a safe system of work has existed for over 90 years in Canadian law and this duty is now incorporated for most purposes under the general due diligence provisions of the various provincial statutes, as noted above.

Most conspicuously, due diligence and safe system of work arguments have been successfully applied in situations where excessive hours of work and/or short staffing have created stress for employees that has led to illness. See, for example, St. Thomas Psychiatric Hospital and Ministry of Labour (unreported, April 26, 1993, Ont. Of. Adj. Docket no. AP01/93-A). In other words, "high deman d" conditions have already been acknowledged as potential and actual occupational health and safety hazards in Canada.

There appears to be nothing in the way of making a legal case for the recognition of "low control" as a similar hazard, even though such cases "will often give rise to extremely difficult evidentiary problems of foreseeability and causation" (Walker v. Northumberland County Council, cited above).

The Walker case is important because it illustrates vividly that sufficient evidence can be brought forward in stress claims to meet the legal standards for foreseeability and causation of harm. In that case it was held that "where it was reasonably foreseeable to an employer that an employee might suffer a nervous breakdown because of the stress and pressures of his workload, the employer was under a duty of care, as part of the duty to provide a safe system of work, not to cause the employee psychiatric damage by reason of the volume or character of the work which the employee was required to perform" (Walker at p. 737).

In Walker, the court noted that, in spite of his "very considerable reserves of character and resilience" what broke the plaintiff was, among other things, "the mounting but quite uncontrollable workload" and "a feeling of frustrated helplessness because he found himself in a deteriorating situation which he was powerless to control "(Walker at p. 754). Note the unmistakable references to "low control" conditions as stressors.

The Walker case stands ready to be imported into Canadian law as a natural development of the rules that already implicate excessive job demands as occupational hazards when the risk to health and/or safety is reasonably foreseeable.

The standard of care in such cases is likely to be the same as in physical risks. That is, only those risks that are reasonably foreseeable by "normal" employers invite the duty of care. ¹ The risks must not be simply those that are intrinsic to the job and the employee who falls victim to them must not be exceptionally vulnerable by virtue of some personality or character trait. Even here, however, an employer who knows or ought reasonably to know that an employee is particularly vulnerable in a psychological sense should not expose him or her to risks from the eventuation of which they may be predictably harmed.

In short, there is a solid legal basis to support claims that certain types of stress at certain levels are hazards under health and safety rules and that employers have a duty to abate such hazards at source under the general requirements of due diligence. Due diligence is more than just a defence against claimants who believe the employer has not done enough to protect them: it is also a proactive duty to provide a system of work that is not only safe physically but also mentally.