Part 1: Current Issues

The Reality of Workplace Violence

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Imagine yourself at work and a co-worker intentionally hits you. For most people, such situations are unthinkable. Hitting, slapping, grabbing, or unwanted touching of any part of a person’s body is completely unacceptable in today’s workplace, and yet, it continues to happen.

This type of conduct can be categorized as both harassment and workplace violence. Harassment is illegal under both the Ontario Human Rights Code and the Occupational Health and Safety Act (OHSA) in Ontario. Workplace violence is prohibited by the OHSA. Bill 132 amended this act to include the requirement for employers to investigate complaints of both workplace harassment and violence.

A year after the implementation of Bill 132, Workplace Safety North posted this article, which states that there was a 100% increase in reports of workplace harassment complaints. This does not mean that there was suddenly an increase in actual cases. Instead, the legislation provided a previously unavailable mechanism for reporting incidents and complaints in accordance with the Ministry of Labour.

As uncomfortable as it may be, we do need to understand what a reported case of workplace harassment and violence looks like in order to prevent it from happening again.

The case of Bassanese v. German Canadian News Company Limited et al., 2019 ONSC 1343 (CanLII) is particularly problematic. Ms. Bassanese was subjected to an ongoing litany of workplace harassment, which included the allegations of being slapped in the face three times by her co-worker. On the day she filed both an internal complaint and a police report about these abuses, Ms. Bassanese was terminated for employment without notice. A summary of this case is provided here.

As part of the decision to award punitive damages to the former employee, the courts included the fact that the employer’s actions were considered a reprisal as defined by the OHSA. Furthermore, the failure on the part of the employer to comply with the legal requirements, as prescribed by the OHSA, to investigate workplace harassment and violence complaints, resulted in the costly damages to be paid by the employer to the employee.

No amount of compensation, however, can pay for someone’s pain, humiliation, and suffering at the hands of their employer. It also, unfortunately, does not seem to be enough of a deterrence to make some employers stop.

Discussion Questions:

  1. As an HR practitioner, what steps would you take if an employee came to you with a complaint that they were slapped by a co-worker? If an investigation provided evidence that an employee did slap a co-worker, what actions would you take?
  2. In the case of Bassanese v. German Canadian News Company Limited et al., 2019 ONSC 1343 (CanLII), what other cases did the courts consider as part of the final decision and award?

Heightened Risk. Heightened Refusal?

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Canadian workplaces have to confront the reality of increased safety risks to workers if they are required to attend to work in essential services, such as healthcare or social services, during the current pandemic crisis. While they may face the increased pressures that come with potential increased risks, workers in Canada continue to have the protection of provincial health and safety legislation that includes the right to refuse work when they believe their own safety is in peril.

In healthcare, for example, nurses at the London Health Sciences Centre exercised this right as noted in this news article. The union representing the nurses alleged that the employer did not provide facemasks as part of a personal protective equipment (PPE) requirement for nurses working in a cancer clinic. In correctional services, prison guards in an Ottawa jail refused to work due to the lack of COVID-19 screening for people entering the jail, as noted in this news article.

Both situations provide us with textbook examples of the rationale for work refusal. It begins with the reasonable belief on the part of the worker that the working conditions are unsafe. The worker must alert the employer to the potential danger and indicate their intent to refuse to do the work. The employer must investigate and take corrective action(s) if there is an existing danger to the workers.

The challenge facing the employer in both situations is the increasing scarcity of masks for PPE and the lack of availability of COVID-19 screening and testing tools. How can the employer provide corrective measures if the equipment is just not available?

As a result, the increased vigilance and reactions in both examples are understandable. Additionally, any current situation where service workers feel that they are at risk is heightened by their growing sense of fear. Fear that they will contract the virus. Fear that they will unknowingly infect someone else. Fear that the consequences of exposure may end with devastating results.

While it seems almost impossible to separate the emotional reaction of fear from the recognition of a workplace hazard, the rules must prevail—as noted in this posting by the Public Service Alliance of Canada (PSAC), which gives clear directions to unionized workers that “fear alone of a potential exposure will not be an adequate reason to refuse work.”

When people start to emotionally escalate into fear, it can quickly turn into panic and result in chaos. We need to help each other to de-escalate out of panic by providing rational and legitimate fact-based information. In a time of turbulence, it is important to go back to the basics and reinforce what the ground rules are for safety protection. The PSAC posting provides excellent and extensive information from a union perspective. From the employers’ side, the law firm of McCarthy Tetrault provides this posting that reiterates the ground rules and circumstances that must be followed in the case of work refusals in order to protect workers and workplaces.

Usually the union and the employer are on opposite sides of a work-related issue. In this current climate, it is heartening to know that the messages are unified in support of protecting each other with logic and reason, through the crisis of this COVID-19 pandemic.

Discussion Questions:

  1. What are the conditions in your current place of work that could prompt a work refusal by employees?
  2. What measures can an employer put into place to provide additional protection for employees in the midst of the COVID-19 crisis?
  3. How can employees who work in service environments ensure that they are self-protecting and meeting their essential job requirements?

Fines and Reprisals in Occupational Health and Safety

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Although there are slight differences, all jurisdictions, whether provincial or federal, have Occupational Health and Safety (OHS) laws; all jurisdictions will have a prohibition against reprisal or retaliation toward any employee who enacts their rights under OHS legislations. Here is a brief refresher of the three main rights of workers under OHS regulations in Canada, which all HR practitioners should know:

  • The right to refuse unsafe work.
  • The right to participate in the safety program.
  • The right to know about the actual and potential hazards.

In Canada, not ensuring an employee has these three legal rights may not only lead to regulatory fines, but to backpay as well as punitive damages.

There was a recent case where an employee raised concerns about various health and safety violations in his workplace, and was fired because of his H&S complaints. After an investigation and a hearing, the Ontario Ministry of Labour agreed with the terminated employee and the tribunal awarded him backpay of $25,000, $4,500 in other awards, and $2500 in punitive damages. Click here to read in greater detail about the case.

There are several very interesting possible legal precedents about this case. Normally the penalty for terminating an employee, when there is a violation of a reprisal clause, is reinstatement. In this case, however, they awarded the former employee backpay. Additionally, the board believed the employer’s actions were not appropriate and they awarded punitive damages on top of the award.

These two awards may end up setting the bar for future cases, when the employer who violates a worker’s OHS rights may have to correct or redress the harm that was caused, in addition to having to pay additional damages depending on how they treated their employee. It will be interesting to see if this is a one-off case or ends up setting a new trend.

Discussion Questions:

  1. Identify the reprisal section of the OHS Act in your jurisdiction. Summarize the fines and/or penalties that are outlined in the section if an individual violates the laws. Create a 5-minute presentation to educate supervisors on the details of that reprisal section.
  2. Review the fines and penalty section of the OHS Act in your jurisdiction and compare it to the one in the next closest jurisdiction. Identify the similarities and differences.

Should Fiera Food Still be in Business?

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When should a company lose its right to exist? 

When it runs out of money? When it damages the environment? How about when it murders 5 of its workers? Yes, you read that correctly. In a period of 20 years, 5 temporary workers were killed in workplace accidents, which could have been prevented, at Fiera Foods. It was a blatant lack of adequate training of these temporary workers that caused their deaths.

All 5 of these deaths were horrible workplace murders:

  • In 1999, a 17-year-old worker was crushed by a bread-making machine
  • In 2011, a worker got crushed by machinery while on the job
  • In 2016, a 23-year-old refugee worker was strangled after her head scarf got caught in equipment
  • In 2018, another worker got crushed by machinery while working
  • The details of the latest fatality have not been released yet, but it sounded like the worker was also crushed by machinery

Click here to watch a CityNews report detailing these workplace fatalities.

It seems like Fiera Foods is not being held accountable for its workplace safety records, even though the company should be shut down by the Ministry of Labour, Training and Skills Development of Ontario (MOL), until it can prove it has all the elements of a safety program in place to ensure the health and safety of all of its workers. The law is very clear on this matter: 25(2)(h) of the OHSA states that the employer is required to “take every precaution reasonable in the circumstances for the protection of a worker.”

It is obvious if you are killing workers at your plant, you are not taking every precaution reasonable.

Does this mean the OHSA laws in Ontario are inadequate? No, but the political and social will is. We can all do better—the government, the MOL, and society at large, which should not accept that 5 souls have left this earth because business is worth more than workers’ safety.

Discussion Questions:

1. Research Bill C-45, also known as the Westray Bill. Prepare a summary of Bill C-45, its purpose, and its penalties. Reflect on the Fiera Foods case, and assess if they should be charged under this legislation.

2. Research how the use of temporary agencies has contributed to workplace deaths. Review the following CBC video link. Imagine your VP of HR has asked you to investigate the benefits and detriments of using temporary agencies to fill your labour gap. What would you tell them about both?

Criminality Costs

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What is the price that corporations must pay when an employee dies on the job as a result of negligent safety practices?

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Some would argue that there is no price that would adequately compensate for the loss of life. The financial penalties should be severe, up to the point of bankrupting the business. Others argue that any loss of life should mean an automatic loss of liberty for the directors who are held responsible when there is a workplace fatality.

Loss of liberty means prison time.

How much prison time to be served and how much money to be paid is up to the courts to decide. As we know from our occupational health and safety studies, employers can (and will) be charged under the Criminal Code of Canada (Bill C-45) in the case of a workplace death. Once convicted, however, recent court and appeal decisions reflect the ongoing argument of how much is too much, or how much is too little, that an employer must pay in order to adequately compensate for the tragic loss of life on their watch.

A recent decision by the Ontario Court of Appeal provides us with some insights into this ongoing and painful dilemma.

Click here to read a summary of the case.

It is interesting to note that this case included considerations of ‘moral blameworthiness’ on the part of the employer by the courts. The concept of ‘moral blameworthiness’ comes into play when determining the consequences for the employer.  If there is clear evidence that the employer engaged in willful misconduct such as knowingly ignoring their obligations under the law, they are subject to increased levels of penalty as a result of their ‘moral’ failures. In this case, among many other elements, it may be that the employer did not meet the standard of ‘moral blameworthiness’ as part of the appeal decision. Ultimately, the courts decided to overturn the originally imposed prison sentences for the employer and uphold a lesser financial penalty.

Court decisions are complicated things which are often challenging to process and to understand. There are nuances and clarities that rely strictly on the application of the concept of procedural fairness under the law. When the final decisions are made, it may be difficult to accept the conclusions that have been made, especially in light of the loss of life which no amount of reparations will replace.

 Discussion Questions:

  1. Do you agree or disagree that company directors should be held criminally responsible when a workplace fatality occurs? Explain your rationale.
  2. If a worker dies on the job and there is clear evidence that the employer was to blame, what types of penalties would you impose? Explain your rationale.
  3. What does the concept of ‘moral blameworthiness’ mean to you?