04 Sep Bill 168: employers’ liability for workplace violence, RegQuest, vol. 3, No. 9 at 1-3 (September, 2010)
The Ontario Occupational Health and Safety Act (“OHSA”) was recently amended by the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) (“Bill 168”), a law which expands and creates new obligations for Ontario employers to take specific steps to proactively prevent and manage workplace harassment and violence. Bill 168 became law on June 15, 2010. This is the third of its kind legislation in Canada. It is designed to transform Ontario employers’ practices of assessing workplace violence and harassment from reactive to proactive. Given the direct financial and legal implications, it is critical for Ontario employers to familiarize themselves with their new obligations to ensure compliance with Bill 168.
Competing Definitions: Code vs. Bill 168
Bill 168 defines “workplace harassment” to mean “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reason- ably to be known to be unwelcome”. The definition was enacted to deal with abusive behaviours intended to intimidate, degrade, injure, humiliate or bully employees. Unlike the definition of “harassment in employment” under the Ontario Human Rights Code (“Code”) where the prohibited grounds create boundaries, the definition of “workplace harassment” is significantly broader in the range of conduct that can constitute “workplace harassment”. It is not safe, for employers, to assume that safety in the workplace necessarily trumps individual rights under the Code. Nor should employers assume that they can only rely on the Code. Bill 168 should be viewed as complementary to and building on the Code. Reconciliation of these competing definitions would likely be left to courts, which creates a potential for a flood of legal proceedings seeking to delimit a type of conduct, which will give rise to “workplace harassment” complaints.
Under Bill 168 “workplace violence” means:
It is important to note that Bill 168 gives an employee the right to refuse work where he or she has reason to believe that “workplace violence is likely to endanger himself or herself.” There is no comparable right to refuse work provided to employees, complaining about workplace harassment. Such a dichotomy suggests that the Ministry of Labour expects employers to develop their own internal procedures to investigate the workplace harassment complaints. It further suggests that should employees be denied the right to work due to the alleged workplace harassment, the Ministry of Labour appears to have no jurisdictional basis pursuant to which it may become involved in determining whether workplace harassment exists.
However, the Health and Safety Inspectors for the Ministry of Labour may review the workplace harassment investigation procedures and if they do not exist, or are deficient, to issue an Order. Curiously, neither Bill 168 nor the Code specify what remedies might be available to employees seeking to enforce their rights to be free from workplace harassment. It means that it will be left to judicial process to assess an appropriate remedy, which should flow from workplace harassment.
Workplace Policies and Investigations
Bill 168 requires employers to develop policies with respect to workplace violence and harassment and review them, at least, annually. It further specifies that in developing a workplace violence program, employers must define how they will investigate and deal with incidents of complaints of workplace violence. While Bill 168 directs employers to develop workplace harassment investigation procedures, it offers no insight into what such procedures may consist of nor does it provide guidance to employers about how an investigation into workplace harassment may be conducted.
It is noteworthy that unless an employer regularly employs five or fewer employees, Bill 168 compels employers to have written workplace violence and harassment policies, which they should post at a conspicuous place in the workplace. Policies must include measures and procedures for employees to report either incidents or threats of workplace violence or harassment. The legislation also goes on to specify that policies shall “include any prescribed elements”. There are no prescribed elements, yet. In addition, Bill 168 requires employers to provide employees with information and instruction on the contents of the policies.
Assessment of Risk of Violence
The rationale behind a risk assessment is to prevent and manage the problem of workplace violence by creating awareness. Section 32.0.3(1) of Bill 168 requires employers to conduct a risk assessment of the workplace to identify and assess the risks of workplace violence that may arise from: (1) the nature of the workplace; (2) the type of work; or (3) the conditions of work. As part of the violence risk assessment, employers should review each part of the workplace’s operating procedures under standard conditions. Employers should also identify every aspect of the work- place that might involve a violence risk and pinpoint situations where the risk of violence is highest. The assessment should be reviewed regularly, including when circumstances such as new operations, design changes, or staffing changes might introduce new or changing risks.
Bill 168 features a novel requirement for employers to address the issue of domestic violence in the workplace. Without defining what constitutes “domestic violence”, Bill 168 compels employers to “take every precaution reasonable in the circumstances” to protect workers from domestic violence that would likely cause physical injury to workers in the workplace. This obligation arises only if the employer is aware, or ought reasonably to be aware, that domestic violence would likely expose an employee to physical injury in the workplace.
Bill 168 imposes much broader obligations on employers than have ever existed in Ontario before. Employers need to decide whether they will have: (1) a separate workplace harassment and workplace violence policy pursuant to Bill 168; and (2) a separate workplace harassment under Bill 168 and harassment policy under the Code. Until there is jurisprudence indicating a different course of action is more appropriate, it would appear that employers who have already developed and implemented harassment investigation procedures under the Code complaints could adopt the same procedures for workplace harassment investigations under Bill 168. However, prior to adopting investigation procedures under the Code, employers should be aware how the OHSA is different from the Code. Specifically, employers should familiarize themselves with the potential risk of prosecution under the OHSA.
In summary, to ensure compliance with Bill 168, employers should:
- draft workplace violence and harassment policies;
- educate employees on such policies;
- undertake risk assessments to determine the possibility or prevalence of workplace violence or harassment;
- disclose incidents of workplace violence and harassment to the Joint Health and Safety Committee and any risk assessments undertaken;
- provide for a system of reporting instances or risks of workplace violence and harassment;
- keep detailed records of any workplace violence or harassment, investigation or work refusal;
- discipline employees for not following workplace violence and harassment policies;
- and offer a confidential Employee Assistance Program to allow employees subject to workplace violence or harassment, or those with personal problems, to seek help.
Finally, it is advisable that employers consider involving their legal counsel in each allegation of workplace harassment and violence and, particularly, when drafting the response to allegations.