'Somebody who is working at a store is not signing up to be a security guard or a bouncer': lawyers explain why employers must focus on facts, not feelings, in workplace trauma claims
A recent Alberta Appeals Commission decision has clarified the standard for compensable psychological injuries in the workplace, emphasizing that the focus is on objective evidence, regardless of the impressions of bystanders.
In its decision, the panel found that a store manager’s post-traumatic stress disorder (PTSD), resulting from a threatening customer interaction, was a compensable workplace injury. The decision reverses earlier rejections of the employee’s claim by the Worker’s Compensation Board (WCB) and the Dispute Resolution and Decision Review Body (DRDRB).
The panel specifically addressed the standard for assessing whether an incident is traumatic, clarifying that the focus is on whether the event meets accepted standards of assessment; in this case, the employer relied on the opinions of other employees and customers who were present.
Witness opinions not admissible evidence
As lawyer Jenna Vivian with Bennett Jones in Edmonton explains, while this decision doesn’t set a new precedent, it demonstrates what evidence arbitrators and boards will find admissible.
“The employer argued that because customers and coworkers weren't alarmed, the incident couldn't have been objectively frightening or shocking,” she says.
“But the panel rejected that, saying that the standard is not whether the other customers or the other employees thought it was traumatic, but whether the event itself meets the definition when it's reasonably and objectively assessed.”
Vivian goes on to explain that what the employer or investigator asks witnesses counts: what is sought from witness statements aren’t opinions or feelings, but facts about what happened.
“The WCB didn't really seem to put much value or weight on what other employees had to say about what had happened. Really what they were focused on was the actual documented evidence,” she says.
“You shouldn't be asking the witnesses: ‘Was that person abusive? Was that person threatening? Was that person aggressive?’ You should just be asking the factual question of: ‘What did the person say? What did the person do?' And the question isn't ‘How did that make you feel?’ That's a subjective question.”
The decision highlighted that the worker’s consistent statements to the WCB, the employer, and her physician were all corroborated by the employer’s own incident report.
The employer’s arguments also addressed video surveillance which it said showed that the situation was not objectively traumatizing or shocking.
Vivian notes that the video in question lacked audio, making it difficult to assess the content for threats and intimidation which were central to the case.
Psychological injury claims: balancing objective and subjective
The employer argued that the interaction with the customer “fell within the scope of normal workplace stressors” as a store manager, since the employee had dealt with him before and had another manager present as support.
It submitted the manager’s job description as evidence, specifically pointing to where “Address customer, staff, and volunteer concerns” were included as responsibilities.
However, the panel rejected this argument, stating, “Being the recipient of such threats and intimidation exceeds the scope of the duties set out in the employer’s description of the duties of a general manager.”
Jack Siegel, partner at Blaney McMurtry in Toronto, explains the nuanced approach required in assessing instances of psychological injury and workplace-related traumas. This means employers must be prepared to consider both the objective facts and the individual circumstances of the worker, recognizing that what may not be traumatic for one person could be for another, depending on their particular experience and perception.
“There's both an objective component and a subjective component,” he says.
“Does the individual, and their unique makeup as a human being, does that lead the fact-finder to conclude that, ‘Yes, she was that afraid’? And that's what the commission did here. They came to that conclusion.”
Prevention and employer obligations
The appeals panel noted that the store had been dealing with the same aggressive customer for some time, observing in its decision that “the situation with this individual was challenging to the point that it apparently consumed most of an evening education session with a police officer on how to best handle this individual.”
It was also stated that a volunteer had indicated she would stop showing up for shifts if the customer wasn’t banned.
Vivian explains that when a customer is known to be a threat, it should not fall to employees to deal with them, even at the managerial level.
“I don't think it would be appropriate for this to be left to an employee, even at the general manager level,” she says.
“Somebody who is working at a store is not signing up to be a security guard or a bouncer. You're a clerk or a manager, not the police or a security guard. I think there was an obligation on this employer once they knew that this particular customer was a threat. That step should have been taken, or preventative measures should have been in place.”
However, Vivian goes on to clarify that from a WCB perspective, even if the customer had been banned, the employer would still be responsible for safety breaches: “The test isn't whether ‘but-for the employer [having] done something different the injury would not have occurred,’ the test is just ‘but-for this incident occurring, the employee would not have had the injury.”
