1 toronto head office: 350 bay street suite 1000 toronto, ontario m5h 2s6 mississauga office: 2...
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Toronto Head Office:
350 Bay Street
Suite 1000
Toronto, Ontario
M5H 2S6
Mississauga Office:
2 Robert Speck Pkwy.
Suite 750
Mississauga, Ontario
L4Z 1H8
T: 416.861.9065
F: 416.361.0993
Understanding Employer Obligations Under Bill 168
Presented by: Lior Samfiru and Chuck Tahirali
Prepared for: Breakfast Seminar Regarding Bill 168
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Bill 168: Addressing Workplace Violence and Harassment
Topics:
1. What does Bill 168 do and how has the legal landscape changed?
2. Conducting Risk Assessments and identifying areas to protect employees
3. Changes to Employer’s obligations re domestic violence, work refusals and training of employees
4. Drafting, implementing and enforcing new workplace policies and programs re violence and harassment
5. Conducting a workplace investigation
6. Employer’s legal exposure from workplace violence/harassment incidents
7. Questions
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Scope of the Problem
2005 Statistics Canada Survey 17% of all incidents of violence in Canada, including
physical assault, sexual assault and robbery, happen in the workplace
71% of these workplace incidents are classified as physical assaults, and 24% as sexual assaults
There is an average of 14 Canadian workplace homicides each year
46% of workplace violence incidents involve consumption of alcohol or drugs
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Legislation Addressing Workplace Violence/Harassment
Human rights law Common law Occupational health and safety (OHS) law Criminal law
Other Jurisdictions
British Columbia Alberta Saskatchewan Manitoba Quebec (psychological harassment only) Nova Scotia Prince Edward Island Newfoundland & Labrador Federal Government (Canada Labour Code)
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Before Bill 168
Limited obligations on employers to proactively prevent workplace violence/harassment
Only obligation was to act as a reasonable employer in the face of a known problem, i.e. not to be negligent
Little relevance to the type of business Employee would have to establish that
employer knew of problem but failed to take appropriate remedy. This is very difficult to establish
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After Bill 168
Employer has duty to proactively protect employees from workplace violence and harassment and cannot be reactive
May be liable, even if not negligent The type of business may increase risk to
employees which results in additional obligations on employers
If employee suffers loss or damages, must only show that employer failed to comply with its obligations under Bill 168.
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Occupational Health and Safety Act
Who enforces the Act?
- Ministry of Labour Inspectors Inspectors have broad powers that include inspecting any
workplace, investigating any potentially hazardous situation and work refusal, ensuring compliance with the Act and regulations and initiating prosecutions.
Employers, supervisors and workers must assist and co-operate with inspectors
May issue orders and/or charges against individuals and/or corporations for not complying with the Act
Significant penalties if found guilty Individuals = $25,000 per offence and/or 12 months in jail Corporations = $500,000 per offence
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Bill 168 Components
Defines Workplace Violence and Harassment Policy Requirements Risk Assessment Requirements Domestic Violence Provision Information and Instruction Incident Reporting Auditing Program
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Bill 168 Components-cont’d-
Summary of Employer Responsibilities: Assessments to measure the risk of workplace violence –involves
looking at incidents within the workplace and analyzing them to determine the greatest risks for violence in the workplace
Develop written and posted policy and procedures for addressing violence and harassment in the workplace as defined in the Act. Policy should define violence and harassment and set out procedures for employees to follow in the event of any contravention of the policy
Development of a program to implement the policy and procedures based on the results of the risk assessment. This will include employee training on the policy and procedures as well as instructions for employees on their right to refusal of work
Review and evaluation on the effectiveness of the policy and procedures at least annually
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Workplace Violence Defined
“The exercise of physical force by a person against a worker in a workplace that causes or could cause physical injury to the worker,
An attempt to exercise physical force against a worker in a workplace that could cause physical injury to the worker,
A statement or behavior that is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.”
Definition focuses on the use or the threatened use, of physical force. There is no requirement that the exercise of physical force is intended to injure. This is intended to address the fact that certain individuals with psychological conditions or disabilities may not intend to injure, but may nonetheless exercise physical force against workers. In other words, intentional and unintentional physical force is considered workplace violence.
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Workplace Harassment Defined
“A course of vexatious conduct or comment against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.”
Definition of workplace harassment in Bill 168 is broader than the definition of harassment under the Human Rights Code as it is not limited to prohibited grounds of discrimination such as race, sex, etc
Expertise Required?
I am not an expert in workplace violence. How can I complete a violence risk assessment?
Employers are not expected to be experts in workplace violence. However, you are expected to have and maintain a general knowledge of the level of violence within your own industry and general location.
SOURCE: Reference Guide to the Violence in the Workplace Regulations, Occupational Health And Safety Division, Government of Nova Scotia
Scope of Assessment
Is the Employer required to assess the risks of violence between individual workers?
The Occupational Health and Safety Act does not require an employer to proactively assess the risks of violence between individual workers. It could be difficult for the employer to predict when violence may occur between individual workers.
However, a review of incidents or threats of violence from all sources may indicate the origins of workplace violence and likelihood of violence between workers at a particular workplace.
SOURCE: Occupational Health and Safety Branch, Ontario Ministry of Labour
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Written or Unwritten?
Subsection 32.0.3 (3) of the Occupational Health and Safety Act states:
(3) An employer shall,(a) advise the committee or a health and safety
representative, if any, of the results of the assessment, and provide a copy if the assessment is in writing; and
(b) if there is no committee or health and safety representative, advise the workers of the results of the assessment and, if the assessment is in writing, provide copies on request or advise the workers how to obtain copies.
Risk Assessment
You are not required to be an “expert”
You are not required to assess the risks for violence between individual employees
You are expected to assess the risks for violence specific to your workplace
This may include a review of any information you have regarding incidents of violence in your workplace
You may be expected to have and apply a general knowledge of the potential sources of violence in your general industry/sector or location
Role for Joint Health and Safety Committee or Rep
You are expected to report the results of the risk assessment to the Joint Health and Safety Committee (or to the H&S Rep, if no committee or to employees-at-large if not Rep)
Consider, as best practice, involving JHSC from the outset
Risk Assessment
You are expected to assess the risks of workplace violence that may arise from,
the nature of the workplace;
the type of work; and
the conditions of work.
Risk Assessment
The risk assessment must take into account:
circumstances specific to the workplace;
circumstances that would be common to similar workplaces; and
other prescribed elements (currently there are none).
Specific high risk factors accepted as predictors of violence
Working with the public Direct contact with customers, clients, patients
High risk activities Handling money or valuables, dispensing drugs, serving
alcohol
Location High crime area, office tower, permeable workplace
High risk industry Health care, social services, retail, security, hospitality,
financial services
Ministry of Labour Guidelines
Activities or circumstances that may increase the risk of workplace violence include:
Handling cash;
Protecting or securing valuables;
Transporting people and goods;
Mobile workplace (e.g., a vehicle);
Public or community contact;
Working with unstable or volatile people;
Working alone or with just a few people; and
Working late nights or very early mornings.
What is a Risk Assessment?
A risk assessment is a step-by-step process to:
Identify factors and situations that could potentially contribute to workplace violence;
Determine what control and prevention measures are already in place;
Collect information to determine the risk of future violent incidents; and
Using information collected to eliminate or minimize those risks deemed as unacceptable.
5 Steps to Risk Assessment
Gather background information Previous experience with violence may be best predictor of
future violence
Obtain employee input Violence and harassment under-reported
Inspect/audit the workplace Analyze the information gathered and obtained
To determine the presence of conditions, operations or situations that might place workers at risk of violent incidents
Record and communicate results to JHSC (if not already involved)
Re-assess Risk
Re-assessments are required as often as is necessary to protect workers from workplace violence.
We recommend that re-assessments be conducted after any incident, as well as annually after your annual policies review.
Four Major Sources of Workplace Violence
Worker-on-worker (between co-workers or from former employee)
Those with legitimate relationship to organization (customers, clients, patients)
Strangers, no legitimate relationship to organization (criminals, random violence)
Those with personal connection to intended victim (e.g., domestic violence that manifests itself in the workplace)
Domestic Violence
Under section 32.0.4 of the Ontario Occupational
Health and Safety Act, if an employer becomes
aware or ought reasonably to be aware that
domestic violence that is likely to expose a worker
to physical injury may occur in the workplace, the
employer must take every reasonable precaution
to protect the worker.
Selected Statistics(Source: Occupational Health & Safety Council of Ontario)
The victims were female in 92 per cent Between 2002 and 2007, Ontario reviewed 230 domestic violence-related deaths (142 women, 23 children and 65 men).
Most male deaths were abuser suicides after killing or attempting to kill their partners or ex-partners.
In 92 percent of the cases, victims were female; the abusers male.
The most common risk factor in domestic homicide was actual or pending separation.
Research suggests that 70 per cent of domestic violence victims are also abused at work.
54% of domestic violence victims miss 3 or more days of work a month.
Who Do Victims Tell At Work?(Source: Healthcare Domestic Violence Network of
Sacramento County, CA)
66% of victims tell someone at work: Immediate supervisor (59%) Co-worker (46%) Another supervisor (6%) Human resource professional (1%)
Victims don’t disclose because: They consider it to be a personal issue Feel embarrassed or ashamed Do not believe people at work can be trusted Fear of losing job or other negative consequences Partner works in same workplace
Domestic Violence
The term “domestic violence” is not defined in the Act.
Guidelines issued by the Ontario Ministry of Labour suggest that domestic violence is not limited to violence committed by a current or former spouse or intimate partner, but may extend to include any personal relationship –
A person who has a personal relationship with a worker – such as a spouse or former spouse, current or former intimate partner or a family member – may physically harm, or attempt or threaten to physically harm, that worker at work. In these situations, domestic violence is considered workplace violence.
Domestic Violence
Policies and programs should clearly stipulate that employees who believe they are at risk of violence in the workplace, including domestic violence, must advise the employer.
Supervisors and managers may require training to recognize the signs of domestic violence most likely to be observed in the workplace and made aware of their responsibilities in this regard.
Signs of Domestic Violence
Signs that domestic violence may be spilling over into the workplace may include:
Employee receives frequent personal calls; demeanour changes during or after call.
Employee receives large volume of personal e-mails from the same person.
Spouse/family member shows up at workplace pestering co-workers, asking questions about the employee or the employee’s whereabouts or activities or tries to enlist cooperation of co-workers to gather information about employee.
Spouse/family member displays angry, jealous or abusive behaviour at workplace, in parking lot or during company social function.
Elements of an Individual Safety Plan
Will depend on particular circumstances, but may include: Notifying reception of the identity/description (photo) of the
individual, with instructions not to admit (and call police). Moving targeted employee’s workstation to more secure area or,
if warranted, re-assign to different role or work location. Removing a targeted employee’s name from the company
directories, office door, etc.; allow calls to be screened. Pre-program emergency numbers into phones. Providing an escort to/from vehicle; assign closer parking spot. Allow for changes in working hours or flexible hours, time off to
attend court, lawyer, etc. Coordinate with police, if involved. Develop a code word or phrase that employee can use to alert a
designed contact of a potential or emerging situation.
Legal Duties: Employers and Supervisors
Prior to passage of Bill 168, various legal duties were imposed on Employers and supervisors, including the duty to ensure employees work in compliance with the Act and to take all precautions reasonably necessary to protect the health and safety of the worker.
All of these duties apply, as appropriate, with respect to workplace violence
Information, Training and Instruction
In addition to these pre-existing duties, as a result of Bill 168, the Act now explicitly requires that:
An employer shall provide a worker with information and instruction that is appropriate for the worker on the contents of:
the policy and program with respect to workplace violence
the policy and program with respect to workplace harassment
Information, Training and Instruction
Merely posting policies in the workplace or providing copies to affected employees is not sufficient to satisfy the requirement of providing instruction.
Specific training and information sessions are required, appropriate to the worker, which may include giving consideration to languages spoken in the workplace other than English.
In some workplaces, risk-specific training may be required, e.g., with regards to handling money, dealing with volatile clients, working in or travelling to high crime areas, and so on.
Information, Training and Instruction
All workers should:
know how to summon immediate assistance;
know how to report incidents of workplace violence to the employer or supervisor;
know how the employer will investigate and deal with incidents, threats or complaints;
know, understand and be able to carry out the measures and procedures that are in place to protect them from workplace violence; and
be able to carry out any other procedures that are part of their employer\s programs.
Source: Ministry of Labour Guidelines
Persons with a History of Violent Behaviour
The duties of Employers and Supervisors extends to include the duty to provide information, including personal information, related to a risk of workplace violence from a person with a history of violent behaviour, but only if,
the worker can be expected to encounter that person in the course of his or her work; and
the risk of workplace violence is likely to expose the worker to physical injury.
No employer or supervisor shall disclose more personal information in the circumstances than is reasonably necessary to protect the worker from injury.
Persons with a History of Violent Behaviour
“Personal information” could include the name of an individual with a history of violent behaviour.
In order for an employer or a supervisor to discharge these statutory duties with regards to a person with a history of violent behaviour, it may be necessary to disclose the name of the individual in question. Indeed, it may be unavoidable.
Not a “Witch Hunt”
“Due diligence” does not extend to compel an employer to make inquiries into the backgrounds of employees in the absence of a reasonable and compelling reason to do so.
This provision is not intended to be pre-emptive in nature, i.e., to compel you to pry into employee’s backgrounds in order to determine whether there is a history of violence which, in the normal course, you would be completely unaware.
Limited Duty of Disclosure
Triggered only in very specific circumstances:
the individual at issue has a history of violent behaviour;
other employees can be expected to encounter this individual, and
the risk is such that physical injury is possible.
A person may have a rather odious background, including a criminal record, without triggering the duty to disclose under the Act.
Persons with a History of Violent Behaviour
Any disclosure of information in order to warn of a risk of violence must be accurate and limited to specific information necessary to discharge obligations to workers:
Be objective, factual and accurate in communicating concerns
Avoid opinions, subjective statements, inferences or innuendo;
Provide information on a strict need-to-know basis; Avoid statements that may be untrue and/or harmful to a
person's reputation; The information disclosed should allow workers to identify
the person and, if appropriate, to understand what triggers his or her aggression.
Right to Refuse Work Due to Violence or Threat of Violence
A worker may refuse to work or do particular work where he or she has reason to believe that,
any equipment, machine, device or thing the worker is to use or operate is likely to endanger himself, herself or another worker;
the physical condition of the workplace or the part thereof in which he or she works or is to work is likely to endanger himself or herself;
workplace violence is likely to endanger himself or herself; or
any equipment, machine, device or thing he or she is to use or operate or the physical condition of the workplace or the part thereof in which he or she works or is to work is in contravention of this Act or the regulations and such contravention is likely to endanger himself, herself or another worker.
Right to Refuse Work Due to Violence or Threat of Violence
Two-stage process
Two standards for assessing legitimacy of refusal
First stage = subjective (genuine belief)
Second stage = objective (would a reasonable person agree?)
Fine line between insubordination and legitimate work refusal
Worker may not be required to specifically invoke the Act
Right to Refuse Work Due to Violence or Threat of Violence
At second stage, Ministry of Labour must be contacted
No right to refuse work because of workplace harassment
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Developing A Policy
Where more than five workers are regularly employed at a workplace, Bill 168 requires that the employer must:
Prepare a written policy with respect toworkplace violence and workplace harassment
Review policy as often as needed, but at least annually
Post policy
Developing A Policy - cont’d -
Develop a policy that deals with harassment and violence* The policies should include: Purpose (to eliminate violence/harassment and ensure safe work
environment) A definition of workplace violence and harassment An indication that the employer will not tolerate workplace harassment
or workplace violence Description of the types of violence and harassment: bullying, sexual
harassment, physical assault, stalking, racial harassment. Complaint Procedure (including who will accept complaint) identify that there will be consequences for breaches of the policy; * Specific reference to jurisdictions other than Ontario and their definitions of
workplace violence and harassment should be considered before the policy is implemented
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Developing A Policy - cont’d -
The policy should also include: Examples of what could be harassment (e.g. shouting,
profanity, throwing things, embarrassing comments, cyber-bullying)
Examples of what is not considered harassment (e.g. negative performance reviews, disciplinary measures, requests to work additional time)
Assurances that all complaints will be kept confidential
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Implementing Harassment Violence Prevention Policy
1. Reasons employers must make sure policy is properly implemented:
2. So that all employees know of expectations and processes
3. Be in a better position to discipline employees for breach of policy
4. Be in a better position to defend against a claim for damages resulting from workplace violence/harassment
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Implementing Policy - cont’d -
Policy should be circulated to all employees Managers should be trained to answer any questions
arising from policy Have meetings with all employees (or, with groups of
employees at a time) to introduce the policy and go over key features of policy
Have all employees sign a form acknowledging that they received the policy and have had an opportunity to review it and ask questions
Every 2- 3 years circulate another copy of the policy and have employees sign acknowledgment again
With respect to new hires: refer to policy in contract of employment and enclose a copy with job offer. New employee should sign a separate acknowledgment.
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Violence/Harassment Prevention Program
Employer must develop and maintain a program to implement the harassment policy and the violence policy Program shall include written measures and procedures:
– To control risks likely to expose worker to physical injury
– For summoning immediate assistance when workplace violence occurs or is likely to occur
– The process the employer will utilize to investigate and deal with incidents and complaints of workplace harassment
Program must be reviewed yearly
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Violence/Harassment Prevention Program
Program shall include written measures and procedures:
For workers to report incidents of workplace violence and harassment to the employer or supervisor
On how the employer will investigate and deal with incidents or complaints of workplace violence and harassment
Investigations
Why conduct an investigation?
Merits of using an external versus an internal investigator
Steps to consider prior to starting the investigation
Features of a Proper Investigation
Complaints must be taken seriously and acted upon promptly.
The investigator should be independent and objective.
The investigator should be properly trained in investigation techniques.
If the investigator is an internal investigator, ensure he/she is neutral to the parties involved in the complaint.
The investigator should not be in a position of authority over any of the parties to the complaint.
Features of a Proper Investigation
Take complaint seriously and act upon it promptly
Use an independent, objective and neutral investigator, ideally experienced in investigation techniques
Comply with your own internal policies and procedures
Protect confidentiality to the greatest extent possible
Proceed quickly, but not too quickly (rule of thumb is to double expected time)
Features of a Proper Investigation
Have complainant reduce complaint to writing or obtain signed statement after initial interview
Insist on cooperation as a duty of employment
Interview everyone referred to in the complaint
Consistent opening comments explaining purpose, confidentiality
Give the alleged harasser the opportunity to respond to every complaint
Talk to everyone the alleged harasser identifies as being a witness or having relevant information
Features of a Proper Investigation
Track to ground any information that comes out of interviews, review related documents, records
Go back to witnesses, complainants or alleged perpetrators to find out response to additional or contradictory information obtained
Take detailed notes of all interviews and, as appropriate, have interviewees review notes or summary statement and sign as accurate
Type notes as soon as possible after interview, i.e., while memory is fresh
Features of a Proper Investigation
Allow people to contact investigator after interview if additional information recalled
Two interviewers often ideal for several reasons
Ensure confidentiality (walls have ears). Consider off-site interviews
Tour work sites where incidents alleged to have occurred
Avoid “if there’s smoke, there’s fire”, both before (bias) or after (undermine outcome and conclusions)
Features of a Proper Investigation
Make findings of credibility, if necessary
Make an objective determination based on balance of probabilities standard
Advise participants of right to be free from reprisals and to file a complaint in the future
Follow up to ensure no reprisals and proper adjustment after investigation closed
Disciplining Employees for Breach of Policy
Discipline should always be commensurate with offence Remember, employer has several forms of discipline
available: warning, suspension, last chance arrangements, termination
Be particularly careful in disciplining long-service employees
Consider implementing progressive discipline policies Discipline must be recorded in writing including
response of employee (even if employee refuses to sign)
Disciplinary measures must always outline expectations Follow up! Remember to maintain privacy of disciplined employee
Disciplining Employees - cont’d -
Terminations: For cause: only if very serious incident which will make
continued employment impossible, or if employee repeat offender
For cause: remember that may still have to pay Employment Standards Act entitlements, unless employee guilty of willful misconduct
Without cause: may decide to part ways with employee, despite absence of cause. In this case, it is best not to get into reason for termination
Without cause: review contract of employment for termination clause and seek legal advice; remember, no such thing as “near cause”
Potential Damages Claims
Constructive Dismissal Employer has duty to maintain proper work environment
free of harassment and violence Where employer breaches this duty (intentionally or not),
contract of employment deemed violated Employee can treat employment as being at an end and
demand severance package Bill 168 makes it easier to pursue constructive dismissal
claim because employee does not have to show that employer failed to react. Would only have to show that employer did not fully comply with obligations under the new legislation.
Potential Damages Claims - cont’d -
Infliction of Mental Suffering If employee suffers psychological injuries as a result of
harassment or violence, could hold employer liable Employee does not have to show that employee was
negligent, just that employer failed to comply with Bill 168 Potential Damages exposure is significant (Sultz v.
RCMP), could be liable to employee if cannot work again: general damages for mental suffering, special damages for past and future loss of income.
Such claims were rare, but will be easier to establish as a result of Bill 168
Other Resources
Ontario Ministry of Labour: http://www.labour.gov.on.ca/english/hs/pubs/wpvh/index.php
- A Toolbox http://www.labour.gov.on.ca/english/pdf/wvps_toolbox.pdf (Includes Suggested Risk Assessment Template) Canadian Centre for Occupational Health and Safety: http://www.ccohs.ca Ontario Safety Association for Community and Healthcare:
http://www.hchsa.on.ca
Domestic Violence Doesn’t Stop When Your Worker Arrives at Work: What Employers Need to Know to Help - http://www.hchsa.on.ca/products/free_resource.shtml
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For further information, please contact:
Lior Samfiru or Chuck TahiraliTel: (416) 861-9065
Fax: (416) 361-0993
www.stlawyers.ca
www.coiri.com
Toronto Head Office:
350 Bay Street
Suite 1000
Toronto, Ontario
M5H 2S6
Mississauga Office:
2 Robert Speck Pkwy.
Suite 750
Mississauga, Ontario
L4Z 1H8
Presented by: Lior Samfiru and Chuck Tahirali
Prepared for: Breakfast Seminar Regarding Bill 168
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