Important

This is not legal advice! What you are getting here is just general legal information. It is not a substitute for advice from an actual lawyer about your specific situation. If you need legal advice, we urge you to find a lawyer who can help you. See How to Find and Work With a Lawyer.

If you’re reading this, you’re probably considering filing a claim with WorkplaceNL because you want to be compensated for harms you suffered due to harassment. This guide explains how to file a WorkplaceNL claim related to sexual harassment, and the pros and cons of this process, so you can decide whether it’s an avenue you want to pursue.

WorkplaceNL is an independent Newfoundland and Labrador governmental agency. Itgives benefits and supports to people who’ve been injured at work. These can include replacement of lost wages, health care (including rehabilitation, counselling, and medications), and, in extreme situations, retraining.

Facts about WorkplaceNL

  • WorkplaceNL functions like an insurance provider. Employers pay premiums to WorkplaceNL for the people who work for them. As a result, those people are entitled to benefits if they suffer a workplace injury.
  • About 97% of Newfoundland and Labrador workers are covered by WorkplaceNL.
  • Every year, about 4,300 WorkplaceNL claims are filed. Most claims are for physical injuries.
  • WorkplaceNL accepts more than 90% of claims. In 2021, 50 of those were mental-health related.
  • Of the 850 requests for review of WorkplaceNL decisions in 2021, 7% were allowed.
  • Over half of appeals to the Workplace Health, Safety and Compensation Review Division in 2021 were denied.
  • Sources: WorkplaceNL, Association of Workers’ Compensation Boards of Canada, WorkplaceNL Annual Performance Report 2020, WHSCRD Annual Performance Report 2020-21

If you’ve been harmed by sexual harassment at work, you might think WorkplaceNL will help you.

  • Maybe after you were harassed, you took time off work and lost income.
  • Maybe the harassment damaged your mental health, and you ended up needing to spend money on medication for anxiety or depression.
  • Maybe the harassment had such an effect on you that you had to leave a male-dominated industry and ended up needing to retrain for a new type of work in a different field. 

Those are the kinds of expenses—replacement of lost wages, medication costs, retraining costs—that WorkplaceNL normally does reimburse.

And so it might sound like a good idea to file a claim with WorkplaceNL.

But we need to warn you: WorkplaceNL is very unlikely to help you.

WorkplaceNL doesn’t investigate or adjudicate workplace sexual harassment claims. It’s not going to say, “Yes, you were harassed, and you were punished for reporting it. Here is some money to make up for the pay you lost.” It’s not going to say, “We agree with you that your industry is unfriendly to people like you, and that it makes sense for you to retrain for a different job where you’re less likely to be harassed. We will fund your retraining.”

All WorkplaceNL can do is to give you benefits and supports if you have suffered a physical injury at work (rare in cases of sexual harassment) or a mental disability (less rare in sexual harassment cases, but hard to prove). It will only help you if the harm you’ve suffered fits into one of those two categories. And if your employer disputes your claim, which it probably will, WorkplaceNL is very unlikely to approve it.

Historically, WorkplaceNL has mostly handled claims related to physical injuries suffered by workers in male-dominated industries like construction and manufacturing, and in uniform occupations like policing and firefighting. If you slip at work and break your ankle, or are struck by a falling object, or are injured in a fire or explosion: that is the kind of situation that WorkplaceNL was designed for and has a lot of experience handling.

Realistically, if you apply for mental stress benefits, you’ll likely be turned down. If you want to pursue the claim after being denied, be prepared to go through an appeal process. Appealing can take a long time, and of the few appeals that are heard, many are denied.

Important

Legally, if your employer is a member of WorkplaceNL, they must report injuries that result in lost time or require medical treatment at their workplace within three days. Most employers are unlikely to report mental health injuries, and they often deny any sexual harassment occurred.

Important

If you want to apply for disability insurance through your workplace provider, the insurer may require you to apply to WorkplaceNL first, and appeal if you are turned down.

Mental stress claims

WorkplaceNL awards benefits due to the injury you sustained, which in your case would be a disability from the mental stress of being sexually harassed. A mental stress condition could be a diagnosis of a condition like depression, post-traumatic stress disorder, or anxiety.

There are two categories of mental stress injuries that might be caused by sexual harassment in the workplace. They are those arising from either:

  • a reaction to a traumatic event, like sexual harassment at work
  • a reaction to multiple traumatic events, like ongoing, recurring sexual harassment at work

For either category of mental stress claim, you’ll need a diagnosis based on the Diagnostic and Statistical Manual of Mental Disorders-5 by a psychiatrist, psychologist, physician, or nurse practitioner.

For more information, see WorkplaceNL’s policy on traumatic mental stress.

Pros and cons of going to WorkplaceNL

Pros

  • Making a WorkplaceNL claim isn’t as expensive or complicated as in other forums. You won’t have to pay for your employer’s legal costs if they appeal your claim and it isn’t successful at the Workplace Health, Safety and Compensation Review Division.
  • If WorkplaceNL accepts your claim, the process to get money could be faster than in other forums.
  • WorkplaceNL benefits can be generous: 85% of your net salary.
  • You submit your claim directly to WorkplaceNL. There’s no need to wait for your employer to investigate.
  • Representing yourself is possible when first making a claim. But if your claim is denied, appealing is more complicated. There may be some legal resources to help if you still want to represent yourself.

Cons

  • You can’t apply to WorkplaceNL secretly. Your employer will know about your claim, which means they will have information about your private health circumstances.
  • Your employer will have the opportunity to dispute your claim. It’s very likely they will dispute it, in which case WorkplaceNL will be more likely to turn it down.
  • If WorkplaceNL rejects your claim and you appeal, the process may go on for years.
  • Your employer will be updated about any changes to your claim. That means they will continue to know about your personal health situation, even if you don’t work for them anymore.
  • WorkplaceNL doesn’t investigate or adjudicate whether you were sexually harassed. If you are looking for someone to tell you that you were sexually harassed, and to punish the harasser or your employer for allowing the harassment, WorkplaceNL won’t give you that.
  • To make a claim, you will need a medical professional to say that you’ve suffered an injury. If you don’t have easy access to a medical professional who will do this, making a claim will be harder.

Will WorkplaceNL accept my application?

  • To be eligible for benefits and services under the WorkplaceNL process, you must be a “worker” employed in a business or industry that is covered by the Workplace Health, Safety and Compensation Act.
  • If you aren’t sure whether you’re covered by WorkplaceNL, you can call (1-800-563-9000), or seek advice from your union, a lawyer, or the Office of the Worker Advisor.
  • WorkplaceNL will only accept your claim if the harassment took place “in the course of your employment.” Meaning, harassment only counts if it takes place at work, during your work hours (or within a reasonable period before or after work), and while you are performing your work duties. If you live on your employer’s property, harassment that takes place outside work hours may still be covered. Similarly, if your work requires you to go to different places, you may be covered while travelling and at the different locations.
  • WorkplaceNL won’t cover every kind of mental stress that arises at work. If you develop a mental health condition caused by your employer making changes to your shifts or other working conditions, for example, or firing you, or due to interpersonal conflicts that don’t involve harassment, you aren’t eligible to file a claim.
  • As a general principle, the law says that you can’t have the same issue decided twice in two different places. If you start a case for the same problem in more than one forum, it’s possible that the decision-maker in one of them will wait until the case has been decided in the other forum or dismiss it altogether. People often try WorkplaceNL first. However, it’s best to speak with a lawyer about your options, as the facts of your case may allow you to approach more than one forum. See How to find and work with a lawyer.

Special situations

Contact WorkplaceNL (1-800-563-9000) to learn about the rules that apply if you are in one of these categories:

  • non-resident worker
  • undocumented or don’t have a work permit
  • foreign agricultural worker

WorkplaceNL will look for proof of these four things when it reviews your mental stress claim:

  1. The sexual harassment you experienced included a traumatic event or a series of traumatic events. WorkplaceNL says a traumatic event “may be a result of witnessing, or being the victim of, a criminal act or a horrific accident” and “may have elements of actual or potential violence.”

  2. The traumatic event occurred in connection with your employment.

  3. The traumatic event is clearly identifiable.

  4. You suffered a disability arising from mental stress. This requires a diagnosis by a physician, psychiatrist, psychologist, or nurse practitioner that is recognized by the Diagnostic and Statistical Manual of Mental Disorders-5. Some examples: acute stress disorder, post-traumatic stress disorder, anxiety, or depression. In some cases, a second assessment and diagnosis by a psychiatrist or psychologist could be required.

WorkplaceNL will consider whether the harassment you faced was “objectively” traumatic. This means that the incident would have to be generally considered as traumatic by the “average worker” or “reasonable observer.” Unfortunately, this overlooks how the sexual harassment has been traumatic for you. Being told that the harassment you experienced was something that the “average worker” wouldn’t think of traumatic can affect you in a variety of ways. It’s a good idea to connect with mental health supports, which can help you through this difficult situation. See 20 ways to take care of your mental health.

Legal help

You may be able to get help from a lawyer for free or at lower cost:

  • The Journey Project has a Sexual Violence Legal Support Service through which you can access free legal advice from trained lawyers, and support and information from a team of legal support navigators.
  • Legal Aid NL may offer support for administrative matters, including workers compensation appeals for people with low income.
  • The Public Legal Information Association of NL (PLIAN) operates a Legal Information Phone Line and Lawyer Referral Service, which can connect you with a lawyer for a 30-minute consultation for a flat fee of $40. In Labrador, you can also call 1-709-896-5235. PLIAN’s website provides information about your options to report and resolve sexual harassment in the workplace.
  • The Office of the Worker Advisor can support you in making a claim, applying for a review, and interpreting relevant legislation and WorkplaceNL policy.
  • JusticeNet is a not-for-profit service for those whose income is too high to qualify for Legal Aid but too low to afford regular legal fees. To qualify you must have a family net income under $90,000 and be experiencing financial difficulties. Participating lawyers’ reduced rates vary depending on your family size and income.
  • Your workplace union, association, or Employee Assistance Program may be able to help you find legal services or cover part of your legal fees.

For advice on hiring a lawyer, see How to Find and Work with a Lawyer.

Social and health supports

  • 211 Newfoundland and Labrador: This community and social services helpline is available 24 hours a day by phone (211 or toll-free 1-855-258-4126) or online. It can put you in touch with many services, supports, programs and more.

Applying

First, you must decide if filing a claim with WorkplaceNL is the right choice for you. Because there is a very high turndown rate for claims involving sexual harassment, there might be other forums—for example, the Newfoundland and Labrador Human Rights Commission or civil court—where you could have a better chance of success.

If you do choose to go to WorkplaceNL, you’ll find more information about work-related mental stress injuries here. You can submit the completed Form 6 (Worker’s Report of Injury) electronically by following the directions on the WorkplaceNL website or mailing it to:

WorkplaceNL
146-148 Forest Road
P.O. Box 9000
St. John’s, NL A1A 3B8

You must file your application within three months of the known injury. If you are already past the three-month deadline, WorkplaceNL may extend this deadline, but it depends on the circumstances of each case.

Once you’ve filed a claim, you can find your claim number in your online account. You can also find other key information related to your claim, and speak with an information officer via live chat.

Your employer’s report

You must give a copy of your Form 6 to your employer. As soon as you report an injury to them, they have to complete a Form 7 (Employer’s Report of Injury). This will include information about your job, your earnings, and your mental stress injury. They must submit the Form 7 to WorkplaceNL and give you a copy. The form asks your employer whether they want to dispute your claim, in which case they will need to provide their reasons why. There is very high likelihood that your employer will do this.

A health professional’s report

If you visit a physician, a physiotherapist, or a chiropractor, they must fill out a specific report form for their type of provider. They will give you a copy of the form to send to WorkplaceNL. These forms include details about your injury, diagnosis, medical tests, your treatment plan, and ability to return to work.

After the forms are filed

Once WorkplaceNL has all of the forms, an eligibility adjudicator will consider your claim. They will be looking at whether your mental stress condition was caused by workplace sexual harassment. If there’s inconsistency between your version of events and your employer’s about whether the injury happened at work, a WorkplaceNL investigator might contact the witnesses you listed on your form. They might also contact you to ask about the details. Many claims are disallowed at this stage.

An independent health examination

WorkplaceNL may ask you to undergo an independent health examination if it thinks more medical information is necessary to make a decision in your case.

The independent health professional may not agree with your health professional’s diagnosis. If so, WorkplaceNL may use that opinion as a reason to deny you benefits.

If your claim is approved

See the Benefits webpage for a detailed outline of what you might be eligible to receive from WorkplaceNL if your claim has been successful. This includes:

  • health care benefits like therapy and prescription drugs
  • money to replace income you’ve lost due to your injury
  • retraining, if necessary
Important

WorkplaceNL requires that anyone who’s providing your health care or who you’re consulting about a workplace injury must report the information they discover. You consent to this when you sign a Worker’s Report of Injury form; health care providers do not need to ask for your consent again. 

Returning to work

WorkplaceNL’s focus is on trying to get you back into the workplace. Your health professional is key to this step. WorkplaceNL will also contact your employer to develop a suitable return-to-work plan, known as an early and safe return-to-work (ESRTW) process. In the case of sexual harassment, this might include arranging that you work at a different location from the harasser.

Tip

The thought of returning to work after the sexual harassment you experienced there can be stressful and overwhelming, as you’re going back to the place where you were harassed. Consider connecting with your support network, like friends, trusted loved ones, a therapist or support group. See Build a Support Network for more information.

An ESRTW facilitator at WorkplaceNL will work with you, your employer, and your health professional, if necessary, to develop a return-to-work plan or work transition plan.

An ESRTW plan sets out the steps you’ll need to take to resume your job. A work transition plan is more complicated, since you’re not able to do your old job and have to be retrained for a new type of work.

Because your ESRTW plan or work transition plan will be guided by what your health professional says, it’s a good idea to tell them about any concerns you have. They might be able to advocate on your behalf and make suitable recommendations. The plan will be very detailed. It may also set out any permanent accommodations you might require.

If your claim is turned down

It’s very likely that your WorkplaceNL claim for mental stress due to sexual harassment will be denied. A high number of these claims are dismissed at an early stage in the process, often after only brief consideration. Appealing is lengthy and seldom successful.

If you disagree with a claim decision, you can first request an internal review. The purpose of this review is to look at gaps or oversights in the initial decision, not to review the whole claim.

You will have to file a written request stating the reasons why you disagree with decision within 30 days of receiving it to:

Internal Review Clerk
WorkplaceNL
146-148 Forest Road
P.O. Box 9000
St. John’s, NL A1A 3B8

You can also request an internal review through your online account. An internal review specialist will make their decision and will send you a copy of the decision within 45 days. It will also be available in your online account. For more information on the internal review process, see here.

The Office of the Worker Advisor can help you prepare for an internal review.

If you don’t agree with the decision, you can file a final review at the Workplace Health, Safety and Compensation Review Division.

The Workplace Health, Safety and Compensation Review Division

You have 30 days from when you received the internal review decision to file a request for an external review from the Workplace Health, Safety and Compensation Review Division. The WHSCRD is the final level of review if you disagree with a WorkplaceNL decision. It’s independent from WorkplaceNL but applies WorkplaceNL policies in its decisions. You must have already gone through the WorkplaceNL internal review process to reach the WHSCRD.

You start the WHSCRD process by filling out the Request for Review form. You should include information about your case, including your claim number, the date of the internal review decision, why you feel it is incorrect, and the kind of benefit you are hoping to receive. The application process is outlined here. You can email your form or mail it to:

Workplace Health, Safety and Compensation Review Division
2nd Floor, Dorset Building
6 Mt. Carson Avenue
Mount Pearl, NL A1N 3K4

The WHSCRD will contact WorkplaceNL to let it know you have requested a review. WorkplaceNL will send your file to the WHSCRD.

The WHSCRD process involves an in-person or teleconference hearing. Within 14 days of receiving your application, the WHSCRD will contact you with the date, time, and location of your hearing. A review commissioner will review your file, hear from witnesses, examine the evidence, and come to a decision.

If you plan to have legal representation during the review process you must complete Section 4 of the Request for Review application. If you get representation after filing your Request for Review, you will need to submit a separate Authorized Representative Consent form.

For a thorough explanation of all the next steps, see the WHSCRD outline of the review process.

In most of its cases, the WHSCRD releases its decisions within 60 days after the hearing has finished. It will send you a written copy.

WHSCRD decisions are final—there’s no appeal. You may request a reconsideration, but these requests are rarely granted. Or you may pursue a judicial review of the decision, which is a limited and technical review through the civil court system. If you are considering this, you should discuss your case with a lawyer to review your options. See How to find and hire a lawyer.