Legislation has heightened employers’ awareness of workplace violence and harassment, resulting in an increase in anti-violence policies
Ontario’s Ministry of Labour laid charges under the Occupational Health and Safety Act (OHSA) in December 2014 against the Centre for Addiction and Mental Health (CAMH) after a nurse was seriously beaten by a patient.
The Ministry alleges that CAMH failed to provide sufficient information, instruction and supervision to protect a worker from workplace violence, or the risk of same, posed by a patient.
Almost one-fifth of violent incidents in Canada occur on the job. In recent years, Canada’s largest provinces have toughened laws and regulations on workplace violence to cover bullying and harassment in addition to the use or threat of physical force.
These measures, and the case law and arbitral rulings emerging from them, add to the legal obligations that employers have regarding workplace violence.
When workers are assaulted or threatened on the job, they have several options for redress: criminal charges against the assailant; grievances (when a collective agreement was breached); human rights complaints (when discrimination was involved); and civil suits.
But they can also look to OHSA remedies. They can refuse to work, make a complaint to the labour ministry and request a compliance order. And, as the CAMH charges show, they can seek prosecution of employers who allegedly fail to satisfy their OHSA duty to provide a violence-free workplace.
Bill 168, an Act to amend the Occupational Health and Safety Act (OHSA), came into force in Ontario in June 2010. It requires employers to adopt policies and programs on workplace violence and harassment, and to do assessments to measure the risk of workplace violence (though not harassment). Employers must train employees on these policies, post them prominently and review them annually.
In two unusual provisions, Bill 168 obligates employers to take measures protecting employees from acts of domestic violence in the workplace, and to warn employees when they’re likely to encounter an individual with a “history of violence.”
The statute defines workplace violence as not just the actual or attempted “exercise of physical force” but also as the threat of physical force. Workplace harassment is defined as “vexatious comment or conduct against a worker … that is known or ought reasonably to be known to be unwelcome.”
Under the amended OHSA, workers may refuse to work when they have reason to believe they are at risk of workplace violence. Under OHSA, the employer would then investigate the refusal, followed by a Labour Ministry inspection, if needed. There is no equivalent right to refuse work due to harassment.
Christine Thomlinson, a partner at Rubin Thomlinson LLP in Toronto, says many employers who, in 2010, took a minimalist approach to instructing their workers on Bill 168, have now decided to do more comprehensive training on workplace violence and harassment.
“Organizations which may have done something basic at the time of implementation are now realizing, particularly as public consciousness [of harassment] increases, that there is not an effective understanding in their workplace of what behaviour is unacceptable,” she says.
Often incidents are not brought to the attention of human resources or the organization’s leadership, who would be sensitive to the risks, but rather to front-line supervisors “who may not recognize them for what they are,” says Thomlinson. It is at that level where training is especially needed, she says.
The employer’s duty to protect outweighs privacy rights. If an employee tells her boss that she is an abused spouse, it effectively forces the employer to disclose that to the other workers since the partner might enter the workplace and endanger the employee and co-workers.
Similarly, if a worker who is about to be promoted undergoes a background check that reveals a previous assault conviction, the employer has a duty to warn the worker’s colleagues so they can protect themselves.
One of the key arbitral rulings since the Bill 168 amendments is Kingston (City) v. Canadian Union of Public Employees, Local 109 (Hudson Grievance). The grievor, a 47-year-old utility worker with 28 years of service but a history of anger management issues, was terminated after she allegedly uttered a death threat against a co-worker who was her Local’s president.
Still, the union grieved her dismissal, contending it was a disproportionate penalty and that Bill 168 did not require a “zero tolerance” approach to workplace violence. The grievor admitted to having an anger problem but denied the allegation.
In 2011, the arbitrator upheld the termination. She concluded that Bill 168 clarified that adjudicators must treat alleged threats seriously, as they are specifically covered by the legislative definition of “workplace violence.” Moreover, to constitute workplace violence, it is not necessary for the worker to be able to carry out the threat or for the victim to suddenly fear for his life.
The arbitrator found that the determining factor in the case was that the safety of the workplace would be at risk if the grievor were reinstated, as there was no evidence that anything had changed. Rather, the grievor continued to deny having made the threat, showed no remorse and failed to apologize.
However, the arbitrator emphasized that dismissal would not have been “proportionate and reasonable” if the grievor’s actions or evidence showed she accepted responsibility, appreciated how serious her misconduct was or knew what she would have to do to control her angry outbursts.
Christopher Parkes, General Counsel at William Osler Health System in Toronto, says Bill 168 “has created more awareness around violence and harassment in the workplace and given our managerial staff a heightened alertness to when they need to take action.”
Registered nurses are assaulted on the job more than any other occupation, including police, according to the Ontario Nurses’ Association. Incidents of violence account for 8 per cent of lost-time injuries in health care.
However, none of the risk assessments done at the two Osler hospitals post-Bill 168 resulted in radical changes in practices, says Parkes. “We have installed more panic buttons, lights and cameras in parking lots.”
Training on workplace violence and harassment is given to new managers as part of the orientation process. It is also given every two years as part of OHSA training.
When complaints are made internally, they are investigated by the human resources department or, occasionally, by an outside party — for reasons of complexity or impartiality. If the complainant is a unionized employee, the incident usually becomes the subject of a grievance and, if not settled internally, goes to arbitration.
The Osler legal department advises on what constitutes harassment and what resolutions might be acceptable. “Depending on the situation, there isn’t always the most glaringly obvious outcome,” says Parkes, “so we may have to consider different scenarios and see which one would best meet our obligations as an employer.”
Joseph Agostino, General Counsel at Hydro One Inc. in Toronto, says his organization has always had a violence prevention policy but updated it post-Bill 168 to comply with the legislation. “We have a ‘one-pager’ posted at all of our work sites throughout the province. We also have education sessions with our employees as part of their health and safety education.”
The legal department’s role is to review Hydro One’s violence prevention program annually and keep it up to date. If an incident occurs, he says, “our labour relations people consult with us about what to do. If we decide that serious discipline is required and there’s a grievance, we would participate in defending the company on the grievance.”
Hydro One workers can report incidents to the human resources department or to their managers or supervisors. Investigations are conducted by either the HR department or, if affecting a unionized worker, by an external investigator acceptable to both management and the union.
Over the last 10 years, Hydro One has dealt with four physical altercations, says Agostino. Slightly more numerous have been incidents of threats or harassment. In one case, a worker was discharged following an incident but was reinstated when an arbitrator ruled a lesser penalty was appropriate.
Québec has long had a general prohibition against workplace violence in its Act Respecting Labour Standards, but while unionized employees could grieve violence complaints, non-unionized workers lacked effective recourse, except if the behaviour had a human rights component.
That disadvantage for non-unionized workers changed with amendments to the Act in 2004. They can now file complaints of workplace violence with the province’s Labour Standards Commission. If the investigation finds the complaint has substance, it is then heard by the Labour Relations Board.
The Act was also amended to prohibit “psychological harassment,” defined as “vexatious conduct in the form of repeated behaviour, words, acts or gestures that are hostile or unwanted, that harm an employee’s dignity or psychological or physical integrity and that result in a harmful work environment for the employee.”
Even a single incident, if it is a serious one and has a harmful effect on the employee, can constitute psychological harassment, says Marie-Hélène Jetté, a partner at Norton Rose Fulbright Canada LLP in Montréal.
The amendments require employers to prevent harassment in the workplace and, if it occurs, to put a stop to it. “Most of the employers in Québec did adopt a non-violence and non-harassment policy, even though it’s not an explicit requirement to do so,” says Jetté.
In the first few years following the amendments, many cases heard by the Labour Relations Board turned on the definition of psychological harassment. Initially, some employees reprimanded for poor performance complained of harassment, but the case law has held that performance management is appropriate if it is not abusive.
“There have been situations where the tribunal recognized that the employer was justified in managing someone’s performance,” says Jetté, “but ruled that the way it was done was inappropriate. You have to do it in a way that is respectful, not harsh. You should never do it in public or in a way that the employee would feel humiliated.”
While performance management rulings have favoured the employer, Jetté notes that the Labour Standards Commission’s willingness to pay for legal representation for workers appearing before the Labour Relations Board on violence or harassment complaints has created an imbalance in favour of workers.
The worker has nothing to lose by pursuing a weak complaint. “Employers, even those having a strong legal case, sometimes prefer to settle a claim rather than incur a few days’ worth of legal bills,” she says.
Imperial Tobacco Canada Ltd. in Montréal has had a policy on workplace violence since the late 1990s, but revised it to reflect the province’s anti-harassment initiative in 2004. All new hires are familiarized with the policy when joining the company. Each year, employees have to sign off on the Standards of Business Conduct, which includes a section on harassment. Managers are trained on how to recognize and deal with harassment.
In the past five years, only one complaint regarding an incident of violence or harassment at Imperial has been filed with the Labour Standards Commission. (The board dismissed it.)
Not surprisingly, Imperial prefers to have complaints dealt with in-house. “Sometimes what seems like harassment may be a workplace conflict that can be mediated,” says Valérie Beaudoin-Tremblay, Imperial’s Senior Litigation Counsel. The company is even willing to address anonymous complaints, “though anonymity makes them difficult to assess,” she says.
The first point of contact in the internal complaints process is either a mid-level human resources official or a line manager. The inquiry is conducted confidentially by the HR official, and witnesses must sign a confidentiality agreement. The HR officer meets with both the complainant and the alleged offender. On the advice of counsel, HR may provide an interim remedy, such as changing the complainant’s reporting relationship while the probe is still underway.
“We have procedures in place to intervene quickly,” says Beaudoin-Tremblay. “We are committed to a full and thorough inquiry. We want employees to feel free to come forward, and we will protect them against retaliation afterward.”
BC has addressed workplace violence under the province’s OHSA regulations since 2004, but initially the emphasis was on violence from an external source, e.g., a gasoline station attendant being mugged by a customer. “The focus has been expanded to include internal threats of violence, such as between two employees on a shop floor,” says Jillian Frank, a partner at Dentons Canada LLP in Vancouver.
Employers are required, under OHSA regulations, to have a policy on workplace violence, informed by a risk assessment. If an employer fails to do a risk assessment, WorkSafeBC – the Workers’ Compensation Board of BC – can issue an order to comply and impose fines.
Instructing workers on how to avoid the risk of violence is part of the OHSA regulations (as well as a general obligation under the Workers Compensation Act to train employees to avoid hazards at work).
New guidelines on bullying and harassment approved by WorkSafeBC came into force in November 2013. Though not part of the OHSA regulations, they have the force of law in BC.
The definition covers “any inappropriate conduct or comment by a person toward a worker that the person knew, or reasonably ought to have known, would cause that worker to feel humiliated or intimidated.” Examples given include yelling, hazing, malicious gossip and name-calling.
The definition explicitly excludes legitimate feedback to employees that is given as part of managing the employment relationship. “However,” says Frank, “even if the employer is communicating a legitimate workplace issue, if they do it in a way that’s disrespectful, that’s going to fall within bullying and harassment.”
She adds: “If it is legitimate feedback given in good faith, even if the employee might feel they’ve been singled out or embarrassed, that’s not the type of conduct that would fall within bullying and harassment. Managers need more training on the distinction between feedback and bullying.”
Workers’ Compensation rulings have been helpful in clarifying matters. In 2012, the BC government amended the Workers Compensation Act to expand coverage for employees suffering from mental disorders to include those caused by workplace bullying and harassment.
The Workers’ Compensation Appeal Tribunal has heard a number of appeals of such cases. In several of them, the Tribunal’s rulings have distinguished between harassment and performance management.
While WorkSafeBC can order compensation for workers forced to take stress leave as a result of harassment, the agency cannot order them reinstated if they’ve been terminated. (The BC Human Rights Tribunal can do so if the harassment breached human rights protections.)
Zulie Sachedina, Vice President of Human Resources and General Counsel at Providence Health Care in Vancouver, says the anti-harassment guidelines codified into law what were previously internal values at Providence’s facilities. “There was much more of an urgency and a discipline that came from the WorkSafeBC changes,” she says. “But we haven’t had a huge increase in the number of [harassment] cases reported.”
Providence has set up a confidential hotline for its staff. “It’s there to give you support in making a complaint,” says Sachedina. “It talks you through the options available to you.” The relevant manager, not HR, usually investigates a complaint. “But if they go down the path of discipline, they should make sure they’re supported by an HR advisor.”
To prevent workplace violence, Providence hospitals do an annual risk assessment, with emphasis on emergency departments and psychiatric units, the two most violence-prone settings. “The actual number of violent incidents has decreased, but the incidents of staff asking for help (‘code whites’) has increased,” Sachedina points out. Workplace violence accounts for just 6 per cent of the staff injury claims accepted by WorkSafeBC.
In implementing measures against workplace violence and harassment, Sachedina finds that it’s an advantage to have the senior HR position and the general counsel role combined in one person.
“They’re not either/or. Good HR practices are good risk management from a legal perspective as well.”