In the recent B.C. decision Bucci v. Ross[1], released last month, the B.C. Workers’ Compensation Appeal Tribunal (WCAT) considered a messy workplace situation. Two individuals (Mr. Bucci and Ms. Ross) worked for a web development organization, at which employees could communicate with each other using Slack, an online chat program. Mr. Bucci and Ms. Ross would sometimes engage in social and political discussions over the Slack “General Chat” channel. Mr. Bucci reported that these discussions often revolved around white male privilege, a topic that he found “troubling” as a white man with (in his view) very little privilege. One afternoon, Mr. Bucci and Ms. Ross engaged in the following exchange:

Ms. Ross: Interrupting women is a microaggression, yeah. It’s really annoying

Mr. Bucci: Is interrupting men a microaggression?

Ms. Ross: Do you know what a microaggression is? Because the answer is no

Mr. Bucci: Then that’s sexist

Ms. Ross: ?

Mr. Bucci: If a man interrupting a woman is considered a microaggression, but it doesn’t go both ways, then that being considered a microaggression is sexist

Ms. Ross: The problem is your use of the term microaggression. It’s not a microaggression to interrupt a man because it does not fit the definition.

Mr. Bucci: What’s the definition?

Ms. Ross: (providing a link to the definition) Google is your friend

Mr. Bucci: So then it’s a sexist and racist term because it’s only about white men

Ms. Ross: No. It’s a term to explains the things that minorities have to deal with on a daily basis by the party with privilege. Cis white men are a good example because they are a) cis b) white c) men

Mr. Bucci: That is so offensive lol. Tell that to every cis white man that lives on the streets where I live. Considering they’re the majority there, some privilege.

A conversation continued about the meaning of privilege, with Ms. Ross eventually asking, “Are you [expletive] joking?” and Mr. Bucci stating that he was leaving the conversation. A few days later, Mr. Bucci sent an email to all staff, which stated in part:

This idea of blatantly hating on men is disgusting. It’s inappropriate, childish, and pathetic. It’s important we talk about this because it’s unacceptable that this type of behaviour continues.

…Attraction is not a choice, so you can’t stop people from being straight. The amount of melanin in your skin is not a choice, so you can’t stop people from being white.

…the newest attack, which was introduced to me since working here, is the hate for those who are 'cis-gendered'. Now, let's talk about what that means. It means to hate someone because they identify as the sex that their biology proves they are [...] not to mention, the complete disregard for science this is likely to follow...Being born male, which includes the XY chromosome, hypodermis collagen bonds, pelvis structure, bone density, brain mass, penis, gonads, molecular signaling at inhibitory synapses in the hippocampus, etc. (seriously, it isn’t difficult to look up the fossil records, and new data on this subject), isn’t a choice either, so you can’t stop people from being male. I’m not going to get into hormone therapy because this isn’t about that, nor do I care.

This is about hate against a group. If you believe it’s deserved, that’s your problem that you need to deal with yourself.

The following day a staff meeting was held, and a manager addressed the email. Ms. Ross expressed that she felt the reference to “being born male” was a slight towards her, as a transgender woman; she called for Mr. Bucci to be fired. The manager noted that there was no human resources policy in place that would prevent Mr. Bucci from sending the email, and accordingly he had “done nothing wrong.”

That evening, Mr. Bucci was working late offsite and returned to the office at approximately 8:00 p.m. He took a drink from a water bottle that had been on his desk, and found that it tasted strange. When he poured the water down the sink, he noticed a residue at the bottom of the bottle. It was subsequently discovered that Ms. Ross had put approximately six naltrexone tablets (a prescription medication which had been in a bottle on Mr. Bucci’s desk) into his water bottle.

Both Mr. Bucci and Ms. Ross claimed they had lasting effects as a result of their workplace interactions. Ms. Ross explained that she developed “severe anxiety, intrusive visions of being physically and violently assaulted by [Mr. Bucci], avoidance tendencies around him…and panic attacks at the consideration of being in the same room as him.” Mr. Bucci claimed mental distress arising from the “water bottle” incident.

Interestingly, different panels of the WCAT considered Mr. Bucci and Ms. Ross’ claims. The panel considering Mr. Bucci’s claim found that Ms. Ross putting the medication in his water was the result of a personal matter (their argument on Slack), such that Ms. Ross’ actions involved a substantial deviation from her employment. The actions therefore fell outside the purview of the workplace compensation scheme.

The panel considering Ms. Ross’ claim noted that while the decision on Mr. Bucci’s entitlement to compensation was final and conclusive, the second panel was not bound by all the reasoning of the first. The second panel noted that – while the first panel found that the political discussions taking place on Slack were a substantial deviation from the workday – this was in the context of identifying the root cause of the “water bottle” incident. The second panel reached a different conclusion vis-à-vis Ms. Ross’ claim, and found that the Slack discussions were incidents that took place in the course of Ms. Ross and Mr. Bucci’s employment; specifically, the panel noted that they took place on the employer’s premises, using equipment supplied by the employer, during working hours. Interestingly, the panel found that while Mr. Bucci was not acting in the course of his employment when he sent the email following the Slack discussion (the email was sent from his own home, after midnight), the panel also found that any impact on Ms. Ross as a result of the email arose out of the course of her employment.

In considering these findings, it is important to keep in mind that they do not speak to how serious the panel felt the behaviour was, or whether the parties ultimately will be compensated for them. Having found that Ms. Ross’ actions fell outside workplace compensation scheme it is now possible for Mr. Bucci to seek compensation through the civil courts. Having found that any mental injuries suffered by Ms. Ross as a result of Mr. Bucci’s actions arose in the course of employment, she will now be able to seek compensation through workplace compensation. Aside from these findings, we can’t be sure what the result would have been if either of them had complained about their interactions under a workplace harassment policy (although we can probably guess).

So, what can we learn from Bucci v. Ross?

1)      The idea of what constitutes working/the workplace continues to expand

Mr. Bucci and Ms. Ross were communicating on a Slack channel reserved for “outside work” discussions, but during working hours. Particularly in the post-COVID era, this type of communication is exceedingly common. As with casual office discussions that can take place in the lunchroom or around the water cooler, employees can sometimes forget that these interactions usually count as “workplace interactions” for the purpose of any law or policy that regulates workplace conduct.

2)      Employers should have policies in place before these issues arise

Part of the confusion in this case arose from the fact that the employer had no policies governing conduct during casual “virtual” chats. What such a policy would look like will vary from workplace to workplace, and be partially dependent on the workplace culture that exists (and the culture that management wants to exist.) Regulating the types of discussions that we saw taking place in this case can be dicey; while there is nothing inherently wrong with discussing controversial topics, employers need to be aware (and make employees aware through policies and training) that issues such as politics and religion can be fraught with tension and can lead to arguments, or even allegations of discrimination or creation of a toxic work environment. The simple fact is that everyone is allowed to have an opinion, but they don’t all belong in the workplace.

3)      Don’t poison your coworkers.

I hope this one is self-explanatory.

All information contained in this blog post is the opinion of Michelle Bird Workplace Consulting and does not constitute legal advice.

[1] https://www.canlii.org/en/bc/bcwcat/doc/2022/2022canlii27206/2022canlii27206.html?searchUrlHash=AAAAAQAQbWljcm9hZ2dyZXNzaW9ucwAAAAAB&resultIndex=6#document