An administrative judge lectures a Montreal health establishment for “its silence and inaction” because it failed to inform an employee suffering from a major depression in a context of harassment of her right to file a complaint with the CNESST . A judgment “very severe” with regard to the employer, estimates the lawyer Marc Bellemare.
The CIUSSS du Center-Ouest-de-l’Île-de-Montréal fought before the Administrative Labor Tribunal to contest an employee’s claim to the Committee on Standards, Equity, Health and occupational safety (CNESST) for occupational injury. The public establishment maintains that the worker ‘s complaint had been filed out of time, that is to say after 15 months, while the legal deadline is set at six months.
“Even if the Employer did not have an obligation under the law, his silence and inaction […] constitute a reasonable reason for explaining the delay of the worker in filing a complaint ”, concluded Thursday the administrative judge Michel Sansfaçon by declaring“ admissible ”the complaint of the worker.
“This is the first time that we have had such a clear judgment saying that employers also have responsibilities”, analyzes Me Bellemare, who represented the worker.
The judge said: the two reasons why there is an “out of time” is that the employer played dead and never informed the employee that she could get compensation, and the doctor who did not do the right papers.
Me Marc Bellemare, lawyer for the worker
This non-union employee was a planning officer at the Cavendish Health and Social Services Center when she was diagnosed with major depression with suicidal ideation in September 2018. Her doctor indicated in the form that the cause of the disability was due to “Intimidation [bullying] at work “.
However, the doctor does not produce a certificate from the Commission, as provided for in the Act, and does not inform the worker that she can file a complaint with the Commission. The woman applies for salary insurance to the employer and asks him to put an end to the psychological harassment situation in force since January 2018. An internal investigation is launched by the employer.
The worker filed a harassment complaint with the Commission in February 2019, after returning to work. But it was not until November 2019 that a CNESST employee informed the worker that she could file a claim for her major depression. Even if the six-month deadline has passed, the CNESST accepts his complaint and recognizes his employment injury.
Plan administered by the employer
Admittedly, the employer has no “duty of assistance” to help a worker under the law, agrees the judge. However, in this context, the “silence of the employer” becomes a reasonable ground for granting an exception to the six-month time limit, the administrative judge ruled. “The employer has known from the start that the worker has a severe psychological injury that she links to events that have occurred at work,” said the judge.
You should know that this health center administers its own salary insurance plan. When an employee is entitled to legal benefits due to an employment injury, he receives 90% of his net salary from the employer until the injury has consolidated. Thus, the employer himself pays the equivalent of the income replacement indemnity, explains the judge.
In this context, the [Tribunal] Does not understand that no one at the employer has mentioned to the worker, even once, that she could file a complaint with the Commission since she linked her pathology to her work.
Administrative judge Michel Sansfaçon
Two other factors may explain the worker’s delay in filing her claim. First, his attending physician did not seem to “know his role or his legal obligations”, according to the administrative judge. In addition, the Commission could have informed the worker of her rights as soon as she filed her harassment complaint.
Lawyer Marc Bellemare points out that it is “extremely complicated” for workers to fight against employers in cases of harassment and occupational injuries. Public employers put “a lot of energy” into contesting harassment cases, he notes.
The CIUSSS du Center-Ouest-de-l’Île-de-Montréal was unable to comment on the judgment received on Thursday evening on Friday. “We are going to take the time to study it well,” said spokesperson Carl Thériault.