Chronic overwork due to understaffing costs bank $15,000 – decision is a landmark, says mental health expert
BMO, recognized on more than one occasion as one of the country’s top employers, must pay $15,000 in damages to an employee for creating unbearable work conditions, according to an Ontario court.
Susanne Zorn-Smith was a hard-working, competent and loyal 21-year employee of BMO, who, in February 2001, suffered complete burnout from constant overwork due to chronic understaffing, said Ontario Superior Court Justice Catherine Aitken, in last month’s decision.
Zorn-Smith refused a return-to-work program in May 2001 because she believed she had been mistreated by the bank and BMO had not made any improvements to the workplace problems that had caused her breakdown. BMO then terminated Zorn-Smith, who took the bank to court for wrongful dismissal.
When she was on disability, her doctor advised against a return to work, though the bank’s medical advisor, without ever seeing Zorn-Smith, determined her condition was not totally disabling and she should return to work part time.
Justice Aitken concluded the termination had been without cause because returning to work for Zorn-Smith would have been “medically disastrous” since there had been no meaningful changes to the work environment that caused her burnout.
Employment law claims involving burnout and stress are rare because it is difficult to prove the employer is responsible for causing the burnout. In this case, the judge had no doubt BMO was to blame. “This callous disregard for the health of an employee was flagrant and outrageous,” she said.
Zorn-Smith’s managers knew she was worn out as a result of the chronic understaffing and that she had requested relief from the workload placed on her. Rather than helping Zorn-Smith, her manager made staffing decisions that compounded her stress.
In part because the bank had acted in bad faith and treated her unfairly, Justice Aitken ruled Zorn-Smith was entitled to a notice period of 16 months. She was also awarded damages of $15,000 for the intentional infliction of mental suffering.
Appeal still possible
BMO is still considering an appeal and would not comment on the Zorn-Smith case, but April Taggart, vice-president of HR, personal and commercial client group, said she is confident the bank has the policies and procedures in place to ensure employees are not being overworked.
“I am very proud of the human resources policies around things like work-life balance and some of our disability policies,” she said.
Annual employee surveys, which can be analyzed down to the branch level, reveal if workload is a problem. If people need to improve coping skills, they can access the company’s employee assistance plan, and all employees also have the option of calling the organization’s HR centre if workload is a concern.
At trial, the bank said Zorn-Smith had the option of appealing her return-to-work program instead of refusing it, but Justice Aitken did not accept this as a defence of her termination. “That was inappropriate. It was the responsibility of the bank to ensure a safe workplace for its employees, a workplace that was not making them ill and unable to work.”
An important case
Though this was a wrongful dismissal case, Dr. Martin Shain, an expert on the effects of workload on employee health of the Centre for Addiction and Mental Health in Toronto, said it represents an important watershed in evolving workplace health and safety jurisprudence.
“It is just the kind of case I was hoping would come along,” he said.
“There is a new class of hazards out there that will be recognized judicially and quasi-judicially. Whether this case is challenged or not, it has gone far enough that it should be a wake-up call to the HR profession that they need to be monitoring these situations much more carefully,” he said.
“Really it is a warning signal to other companies that, watch it, things are changing out there.”
He also pointed out that while BMO is recognized as one of the top 100 employers in the country and has been enjoying record profits, in some places in the organization people are being worked to the point of mental and physical breakdown. In some organizations there is a big difference between what companies purport to be visions and values and what actually happens within the organization, he added.
It’s likely other judges will have different interpretations of the issues involved, but the decision is an indication of a broader change in attitudes about these things, he said. “There is just so much you can squeeze out of people and still remain within the law.”
Employers pay for poor behaviour during dismissal
Labour lawyer James McDonald, of Toronto-based Sack Goldblatt Mitchell, said while the decision does not break any new ground in employment law, it reinforces a clear trend.
“This is a strong statement by a judge that employers who put employees in situations where they are going to be susceptible to burnout, and the employer is familiar with the employees’ situation, the employer will be held liable.”
The details of the case make it clear the bank was at fault, he said. Some of Zorn-Smith’s co-workers had also left the bank due to exhaustion. “It wasn’t like the bank could say how well they treated everybody and she is just a whiner.”
In awarding extended notice damages, after establishing dismissal was without cause, Aitken applied the 1997 precedent-setting Wallace decision, where the Supreme Court of Canada extended the notice period of an employee after his employer was particularly thoughtless in the way it dismissed him. Lower courts are applying Wallace more and more, he said.
Taggart said managers at BMO who receive complaints about workload are encouraged to report the complaint up the chain of command. “Our policies are pretty clear about that. I think if that kind of an issue is brought to management it would be escalated,” she said. In the past couple of years, the bank has been emphasizing to managers the importance of a good work environment, she added.
She also said the bank’s most recent employee engagement score had improved by 10 per cent from the previous survey, but did not provide statistics about the number of lost-time claims for stress or exhaustion. An employee claim for stress-related disability does not trigger an employer investigation because employee confidentiality prevents management from knowing the details of individual claims, she said.
“Our primary concern is around protecting the confidentiality of the employee,” she said. “A lot of the support we provide to the employee only works if they feel they can engage in those kinds of services with absolute confidentiality.”
Pattern of overwork and understaffing
In delivering her decision, Aitken described in detail a pattern of overwork and understaffing in the nearly two years before Zorn-Smith broke down.
Zorn-Smith took the position of financial services manager in April 1999. The year before, however, she had been told by a superior that she was unqualified for the position because she lacked the education and credentials required for the job and that, with three kids at home, it would be difficult for her to get the qualifications.
The judge found Zorn-Smith was overworked in the months after taking the position. She would work a full day everyday, often without taking a lunch break, and return to the office two or three nights a week, after putting her kids to bed, to work and study for the exams she needed for her position, sometimes past midnight.
During this time, she was also told by her boss, on more than one occasion, that if she did not pass the exams “she would be out of a job.”
Zorn-Smith first went on short-term disability for a few weeks in February, 2000. Her doctor diagnosed work stress and burnout. He said BMO should have provided Zorn-Smith with more time to study for her courses and set job expectations that reasonably reflected her level of training. She was expected to complete the courses to stay in her job, but was not given the time to realistically do it, he said.
Taggart said the bank’s policy is to provide time for mandatory training. “There are two types of training. There is training required for someone to be qualified on the job, and yes, that is built into the schedule.”
When Zorn-Smith went on disability a second time in February 2001, eventually leading to her termination, her doctor again said her burnout was caused by unrealistic expectations and overwork caused by understaffing. Justice Aitken agreed.
“Her energy, initiative and stamina had been drained out of her by too many months of unreasonable work demands,” she said.
Susanne Zorn-Smith was a hard-working, competent and loyal 21-year employee of BMO, who, in February 2001, suffered complete burnout from constant overwork due to chronic understaffing, said Ontario Superior Court Justice Catherine Aitken, in last month’s decision.
Zorn-Smith refused a return-to-work program in May 2001 because she believed she had been mistreated by the bank and BMO had not made any improvements to the workplace problems that had caused her breakdown. BMO then terminated Zorn-Smith, who took the bank to court for wrongful dismissal.
When she was on disability, her doctor advised against a return to work, though the bank’s medical advisor, without ever seeing Zorn-Smith, determined her condition was not totally disabling and she should return to work part time.
Justice Aitken concluded the termination had been without cause because returning to work for Zorn-Smith would have been “medically disastrous” since there had been no meaningful changes to the work environment that caused her burnout.
Employment law claims involving burnout and stress are rare because it is difficult to prove the employer is responsible for causing the burnout. In this case, the judge had no doubt BMO was to blame. “This callous disregard for the health of an employee was flagrant and outrageous,” she said.
Zorn-Smith’s managers knew she was worn out as a result of the chronic understaffing and that she had requested relief from the workload placed on her. Rather than helping Zorn-Smith, her manager made staffing decisions that compounded her stress.
In part because the bank had acted in bad faith and treated her unfairly, Justice Aitken ruled Zorn-Smith was entitled to a notice period of 16 months. She was also awarded damages of $15,000 for the intentional infliction of mental suffering.
Appeal still possible
BMO is still considering an appeal and would not comment on the Zorn-Smith case, but April Taggart, vice-president of HR, personal and commercial client group, said she is confident the bank has the policies and procedures in place to ensure employees are not being overworked.
“I am very proud of the human resources policies around things like work-life balance and some of our disability policies,” she said.
Annual employee surveys, which can be analyzed down to the branch level, reveal if workload is a problem. If people need to improve coping skills, they can access the company’s employee assistance plan, and all employees also have the option of calling the organization’s HR centre if workload is a concern.
At trial, the bank said Zorn-Smith had the option of appealing her return-to-work program instead of refusing it, but Justice Aitken did not accept this as a defence of her termination. “That was inappropriate. It was the responsibility of the bank to ensure a safe workplace for its employees, a workplace that was not making them ill and unable to work.”
An important case
Though this was a wrongful dismissal case, Dr. Martin Shain, an expert on the effects of workload on employee health of the Centre for Addiction and Mental Health in Toronto, said it represents an important watershed in evolving workplace health and safety jurisprudence.
“It is just the kind of case I was hoping would come along,” he said.
“There is a new class of hazards out there that will be recognized judicially and quasi-judicially. Whether this case is challenged or not, it has gone far enough that it should be a wake-up call to the HR profession that they need to be monitoring these situations much more carefully,” he said.
“Really it is a warning signal to other companies that, watch it, things are changing out there.”
He also pointed out that while BMO is recognized as one of the top 100 employers in the country and has been enjoying record profits, in some places in the organization people are being worked to the point of mental and physical breakdown. In some organizations there is a big difference between what companies purport to be visions and values and what actually happens within the organization, he added.
It’s likely other judges will have different interpretations of the issues involved, but the decision is an indication of a broader change in attitudes about these things, he said. “There is just so much you can squeeze out of people and still remain within the law.”
Employers pay for poor behaviour during dismissal
Labour lawyer James McDonald, of Toronto-based Sack Goldblatt Mitchell, said while the decision does not break any new ground in employment law, it reinforces a clear trend.
“This is a strong statement by a judge that employers who put employees in situations where they are going to be susceptible to burnout, and the employer is familiar with the employees’ situation, the employer will be held liable.”
The details of the case make it clear the bank was at fault, he said. Some of Zorn-Smith’s co-workers had also left the bank due to exhaustion. “It wasn’t like the bank could say how well they treated everybody and she is just a whiner.”
In awarding extended notice damages, after establishing dismissal was without cause, Aitken applied the 1997 precedent-setting Wallace decision, where the Supreme Court of Canada extended the notice period of an employee after his employer was particularly thoughtless in the way it dismissed him. Lower courts are applying Wallace more and more, he said.
Taggart said managers at BMO who receive complaints about workload are encouraged to report the complaint up the chain of command. “Our policies are pretty clear about that. I think if that kind of an issue is brought to management it would be escalated,” she said. In the past couple of years, the bank has been emphasizing to managers the importance of a good work environment, she added.
She also said the bank’s most recent employee engagement score had improved by 10 per cent from the previous survey, but did not provide statistics about the number of lost-time claims for stress or exhaustion. An employee claim for stress-related disability does not trigger an employer investigation because employee confidentiality prevents management from knowing the details of individual claims, she said.
“Our primary concern is around protecting the confidentiality of the employee,” she said. “A lot of the support we provide to the employee only works if they feel they can engage in those kinds of services with absolute confidentiality.”
Pattern of overwork and understaffing
In delivering her decision, Aitken described in detail a pattern of overwork and understaffing in the nearly two years before Zorn-Smith broke down.
Zorn-Smith took the position of financial services manager in April 1999. The year before, however, she had been told by a superior that she was unqualified for the position because she lacked the education and credentials required for the job and that, with three kids at home, it would be difficult for her to get the qualifications.
The judge found Zorn-Smith was overworked in the months after taking the position. She would work a full day everyday, often without taking a lunch break, and return to the office two or three nights a week, after putting her kids to bed, to work and study for the exams she needed for her position, sometimes past midnight.
During this time, she was also told by her boss, on more than one occasion, that if she did not pass the exams “she would be out of a job.”
Zorn-Smith first went on short-term disability for a few weeks in February, 2000. Her doctor diagnosed work stress and burnout. He said BMO should have provided Zorn-Smith with more time to study for her courses and set job expectations that reasonably reflected her level of training. She was expected to complete the courses to stay in her job, but was not given the time to realistically do it, he said.
Taggart said the bank’s policy is to provide time for mandatory training. “There are two types of training. There is training required for someone to be qualified on the job, and yes, that is built into the schedule.”
When Zorn-Smith went on disability a second time in February 2001, eventually leading to her termination, her doctor again said her burnout was caused by unrealistic expectations and overwork caused by understaffing. Justice Aitken agreed.
“Her energy, initiative and stamina had been drained out of her by too many months of unreasonable work demands,” she said.
