Occupational Health and Safety Act: Violence and Harassment in the Workplace

Summary

• Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace), became law on December 10, 2009.

• Ontario workplaces had until June 15, 2010, to ready their workplaces, policies, programs and practices to ensure compliance with these provisions

• Bill 168 outlines violence and harassment obligations under Ontario’s Occupational Health and Safety Act (OHSA).

• Under Bill 168, employers are required to create and implement workplace violence and harassment policies, programs to implement such policies, and engage in assessments designed to measure the risk of workplace violence.

Summary – cont’d

• The Bill amends section 43 of the Act, which deals with a worker’s right to refuse work in various circumstances where health or safety is in danger, to include the right to refuse work if workplace violence is likely to endanger the worker.

Summary – cont’d

Summary – Cont’d

• Under section 32.0.4 of the Act, if an

employer is aware or ought to be aware of

domestic violence that may occur in the

workplace and is likely to expose a worker to

physical injury, the employer must take

every reasonable precaution to protect the

worker.

Why has the OHSA Act Been Amended?

• Over the years, workplace violence has been on the increase.

• Stress has played a part on increased violence; both workplace stress, economic stress and family stress.

• Workplaces have become more multi-cultural over the years which has also contributed to harassment and violence in the workplace.

• In April 1999, Pierre Lebrun, an employee of the OC Transport in Ottawa went on a shooting spree resulting in 5 deaths including his own.

• He had been bullied for years and although he had complained to his supervisor, nothing was done; his supervisor even participated in the bullying.

Why has the OHSA Act Been Amended? – cont’d

• The coroner’s jury made 77 recommendations and paid particular attention to psychological violence, i.e. bullying, teasing, ridicule, etc.

• While the jury made these recommendations, there was no corresponding actions to the recommendations.

Why has the OHSA Act Been Amended? – cont’d

• More recently Lori Dupont was murdered by her ex-boyfriend, anesthesiologist Dr. Marc Daniel.

• Ms. Dupont requested the hospital assist her, and although they assigned security guards to walk her to her car after her shifts, they denied her requests to be transferred.

Why has the OHSA Act Been Amended? – cont’d

• Dr. Daniel subsequently shot and killed Ms. Dupont and then committed suicide.

• The coroner’s jury made a further 26 recommendations including that the OHSA be reviewed and domestic violence, abuse, and harassment be included.

Why has the OHSA Act Been Amended? – cont’d

• Your company must be committed to building and preserving a safe, productive and healthy working environment for your employees based on mutual respect.

• As a responsible employer, you will not condone and will not tolerate acts of violence or harassment against or by any your employees.

• You must take every reasonable precaution and implement measures to prevent violence and protect all your employees from potentially violent situations.

What is your Company’s Purpose

• The worker could be expected to encounter that person in the course of his/her work; and

• There is a risk of workplace violence likely to expose the worker to physical injury.

What is your Company’s Purpose – cont’d

As an employer, and those of you who are managers, you are obligated to provide information, including personal information, to a worker about a person with "a history of violent behaviour" if:

• Specifically if the Company is aware that domestic violence is likely to expose an employee to a workplace physical injury, every reasonable precaution will be implemented to protect the individual.

What is your Company’s Purpose – cont’d

The definition of “workplace violence” means but is not limited to:

Workplace Violence Definition

• 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 causes or could cause physical injury to the worker

• Any threat, behaviour or action which is interpreted to carry the potential to harm or endanger the safety of others, result in an act of aggression, or destroy or damage property

• Disruptive behaviour that is not appropriate to the work environment (e.g., yelling, swearing)

Workplace Violence Definition – cont’d

Sexual or racial harassment can be defined as:

• Any behaviour, in the form of words, gestures, or actions, generally repeated, that has undesired sexual or racial connotations, that has a negative impact on a person’s dignity or physical or psychological integrity, or that results in the person being subjected to unfavourable working conditions.

Harassment Definition

• Usually, harassment can be distinguished from normal, mutually acceptable socializing. It is important to remember it is the perception of the receiver of the potentially offensive message be it spoken, a gesture, a picture or some other form of communication which may be deemed objectionable or unwelcome that determines whether something is acceptable or not.

• It creates an uncomfortable work environment and has no place in employee relationships.

Harassment Definition – cont’d

• Section 32.0.2 of the Act requires employers to develop a program to implement the workplace violence policy, and the workplace harassment policy.

• The program must include measures to control risks of workplace violence identified in a risk assessment that is required under Bill 168 to summon immediate assistance when workplace violence occurs, and for workers to report incidents or threats of workplace violence.

Policies and Procedures

• The program must also set out how the employer will deal with incidents, complaints and threats of workplace violence and harassment.

• Section 32.0.7 requires employers to provide their employees with information and instruction on the contents of the workplace harassment policy and program.

• The policies must be posted in your workplace and reviewed by the employer annually.

Policies and Procedures – cont’d

• Each employer must designate an employee to act as a Workplace Co-ordinator with respect to workplace violence and harassment issues.

• The name of the Workplace Co-ordinator must be communicated and should be someone at a senior level, who has responsibility for handling confidential information.

Policies and Procedures – cont’d

Policies and Procedures – cont’d

• The employer must develop comprehensive policies and procedures with respect to Workplace Violence and Workplace Harassment, a copy of which must be posted in a place where all employees will have access to it, such as a lunch room. Posting your policy on the Intranet is not considered sufficient.

• Employers with less than five employees must comply to all of the Bill 168 requirements except they do not have to post their policy.

• If you have more than one location, then you must post your policy in all locations whether it be an office, a warehouse, distribution

centre, etc.

• Bill 168 training requirements include harassment in all forms, including bullying, and violence in the workplace, including domestic violence.

• Employees must be trained on the harassment and violence policies.

Address Training Issues

• Section 32.0.3 of the Act requires employers to assess the risk of workplace violence and to report the results of the assessment to the Joint Health and Safety Committee or to a Health and Safety representative.

• The risk assessment can either be undertaken by the Workplace Co-ordinator or by having each employee complete a questionnaire.

• The Workplace Co-ordinator analyzes the responses and prepares a report for the Joint Health and Safety Committee.

Address the Risk of Workplace Violence

Joint Health & Safety Committee

• Bill 168 is an amendment to the OHSA which requires that companies with more than 20 workers have a Joint Health & Safety Committee, comprised of at least one management representative and one worker representative.

• Employers with 5 workers but less than 20, are required to have a Health & Safety Representative who must not be a management employee.

• All companies must ensure that appropriate security measures are in place at the workplace to protect workers from members of the public or customers, should a threat arise.

Ensure Appropriate Security Levels

• The amendments now require that employers prepare a notice under section 52 of the OHSA in the event that an employee is disabled from their regular duties, or requires medical attention, as a result of workplace violence.

Reporting Workplace Violence toThe Ministry of Labour (Ontario)

Employee/Supervisory RolesIn Maintaining a

Positive Work Environment

• As an employee you have the following responsibilities to your workplace. All employees should help to eliminate harassment from your workplace.

Roles and Responsibilities

Co-worker's Role

If you are a co-worker who has witnessed harassment in the workplace:

Roles and Responsibilities – cont’d

• Inform the harassed person that you have witnessed what you believe to be harassment and that you find it unacceptable. While support is often welcome, a person may not feel that they have been harassed and normally the incident should be considered closed.

Co-worker’s Role – cont’d

• Inform the harasser(s) that you have witnessed the act(s) and find it unacceptable.

• Encourage the harassed person to report the incident to their Manager.

Roles and Responsibilities – cont’d

Management’s Role

• Legally, management is responsible for creating and maintaining a harassment-free workplace.

• Management must be sensitive to the climate in the workplace and address potential problems before those problems become serious.

Roles and Responsibilities – cont’d

Management’s Role – cont’d

• If a management employee becomes aware of harassment in the workplace and chooses to ignore it, the management employee and the Company risk being named co-respondent in a complaint and may be found liable in legal proceedings brought about by the complainant and/or local human rights' authorities.

Roles and Responsibilities – cont’d

Roles and Responsibilities – cont’d

• Employers must communicate the policies as well as the process for dealing with complaints.

• Informal Complaint Procedures can be as simple as having the complainant approach the harasser and request he/she stop the behaviour.

Roles and Responsibilities – cont’d

• The formal complaint procedure involves a number of steps but most importantly, it must allow for specific steps and time frames involved in investigating a complaint.

• Companies should always consider using an outside resource to conduct investigations to ensure impartiality, confidentiality and unbiased treatment of both the complainant and the respondent.

Frequently Asked Questions

Q: What happens to the people who complain of workplace violence or harassment in the workplace just to retaliate against someone they don't like or get along with?

A: This is a very unusual situation and more likely to occur when employees are not informed about the definition(s) of workplace violence or harassment. An explanation of the complaint procedure would discourage this type of complaint. Frivolous complaints could result in disciplinary procedures.

Frequently Asked Questions

Q: All reasonable complaints must be investigated. Retaliation against any employee as a result of a complaint will not be tolerated.

A: If you feel you are being treated unfairly after the initial complaint, you may complain of retaliation through the same procedure. Confidentiality is emphasized in every case to ensure protection of your reputation.

Frequently Asked Questions – cont’d

Q: How can the investigation be kept confidential if everyone knows what is going on?

A: Confidentiality is identified as a major concern.

The employee grapevine is a part of every company and certainly beyond our ability to control.

It is the responsibility of the investigator to discuss the complaint only with those who might have knowledge of the situation.

Frequently Asked Questions – cont’d

Q: Will the person who acted in a violent manner with me go to jail?

A: If a criminal action has occurred and the individual could face criminal charges. As an employer, our Company/Firm is required to obey applicable provincial and/or federal statutes protecting against violence in employment.

Frequently Asked Questions – cont’d

Q: If I'm accused of a violent activity, may I hire a lawyer?

A: You may wish to consult with a lawyer. If you cooperate during the investigation, you should be able to expect fair treatment by the Company/Firm. Employees who ignore or abuse the investigative process will be subject to disciplinary procedures.

Frequently Asked Questions – cont’d

Q: If someone else is the subject of violent behaviour, do I have to get involved as a witness? It's their problem, not mine.

A: You cannot be compelled to become involved. However, we trust all employees will help us eliminate violence of any kind from our workplace. A positive safe respectful work place benefits everyone and we must all be proactive.

Frequently Asked Questions – cont’d

Q: How do you decide if there were no witnesses and it's just one person's word against another?

A: Many individuals with violent tendencies repeat their actions with other employees. Investigations can include former employees who have experienced this behaviour. Witnesses are not always required to establish what has occurred.

Frequently Asked Questions – cont’d