Part 3: Interventions

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?

Protect Your New Employees

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One certain way to protect your recruitment investment is to protect your new workers.

Many HR professionals are aware that younger workers get workplace injuries more often than older workers, and because of that, many HR departments have young worker awareness (YWA) training programs. Many HR professionals, however, are unaware that all new workers are more susceptible to injuries, and not just young workers. In fact, some research states that not only do young workers and new workers get hurt more often, but they get hurt earlier on the job as well.

According to the Infrastructure Health and Safety Association (IHSA), “New and young workers in Ontario are four times more likely to be injured during the first month of employment than at any other time.”

Four times more likely to get injured in the first four weeks! This is an incredibly alarming statistic, and it is not just applicable to young new workers; it is all new workers that are getting injured at a higher rate (click here to read in greater detail), and HR departments must take notice.

Some jurisdictions are taking note of this safety concern and are addressing it in their provincial Occupational Health and Safety (OHS) legislation, such as in British Columbia, under sections 3.22 to 3.25 of their Workers Compensation Board (WCB) safety regulations, which specifically address what is required for young and new workers’ safety training. Click here to learn more about the safety requirements for young new workers in BC.

Employers are concerned about how hard it is to recruit and retain good employees, but perhaps if employers did more OHS training during employee orientation and on-boarding, they would not be losing their young and new workers in the first month of their employment.

Discussion Questions:

1. Research the OHS legislation in your jurisdiction. Identity if there are any specific laws or regulations regarding the specific training of young and new workers.

2. Review the BC OHS regulations that pertain to young and new workers (click here for link). Review the requirements and develop an outline of a safety orientation program that would meet its legal requirements.

When is Enough, Enough?

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What is an acceptable number of workplace fatalities? Is there ever an acceptable number of workplace fatalities? Most of us would say no, but do we even know what the current fatality statistics are in Canada? Again, most of us would say no.

For the last 10 years in Canada, an average of 1000 workers a year have been killed in the workplace. The most current data we have is from the Associations of Workers’ Compensation Board of Canada (AWCBC), which revealed 951 workers died on the job in 2017.

Recently, it was also reported that the US saw the highest number of workplace deaths since 2008, which was recorded at 5250 deaths in 2018. Doing some simple analysis, 5000 workplace deaths is a larger number than 1000, but does this lead to the conclusion that it is more unsafe for workers in the US than in Canada?

When we compare workplace fatalities between Canada and the US, we can agree on the following numbers:

  • Canada: 951 deaths in 2017
  • US: 5250 deaths in 2018

Discounting the issue of different reporting years, it does not take a scientist to realize that something is not right.

Canada’s workplace fatalities rate is much higher, because Canada has a much smaller population of approximately 35 million people compared to the US’s approximate population of 327 million. For the ease of math, one could argue that the US’s population is 10 times that of Canada’s. Therefore, if Canada had 10 times the population than it does currently, our workplace fatalities would be at approximately 9510 a year.

What this means is, on a roughly per capita basis, workers in Canada are dying at twice the rate, compared to workers in the US.

This is not acceptable. When is enough, enough?

Canadian employers and provincial and federal governments must take note of this alarming statistic and develop a national campaign to combat this terrible workplace reality, with the ultimate goal of eliminating workplace fatalities.

Every worker has the right to come home every night.

Discussion Question:

What can an HR department do to increase awareness about workplace fatalities in Canada? Develop an awareness campaign that could be implemented at a large manufacturing company that has plants all over Canada.

Pressure and Support For Youth Safety

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From our Occupational Health and Safety studies, we have learned that the Internal Responsibility System (IRS) is integral to ensuring that every day our colleagues and co-workers come to work with an expectation of safety and that every day they leave work with that expectation fulfilled. Under the IRS each of us has a personal responsibility to ensure that other individuals in the workplace are both working safely and promoting safe work practices. These other individuals include new workers, young workers, and summer student workers. The provision of safety support alone, however, is not enough to keep our young co-workers safe. The supportive responsibilities go hand in hand with pressure from government intervention to make sure safe work practices for youth are implemented and reinforced.

Every year, provincial programs focus on ensuring that employers are providing safe workplaces for new and young worker during the summer months. This summer time ‘safety blitz’ includes the pressure of inspections by government representatives, who have the authority to fine and impose safety-related orders when employers are found to be non-compliant with safe work practices.

Click here to read about the summer safety blitz announced in London, Ontario.

Along with this type of pressure, supportive education programs targeting schools with young workers, continue beyond the summer months.

Click here to read about more about youth safety and watch a news clip about Youth Safety Education Day in Saskatchewan.

The need for both pressure and support comes from the unfortunate reality of young worker injury and fatality rates. As noted in the interview promoting Youth Safety Education Day in Saskatchewan, 50% of young workers are injured on the job within the first six months of work and worse, there is an average of three fatalities per year for youth on the job in the same province. Given that Ontario’s prior year summer safety blitz resulted in ‘7,675 orders and requirements under the Occupational Health and Safety Act,’ it is clear that the need for safety at work for young workers is a cross-provincial concern.

More importantly, under the IRS program and especially for young workers, it is clear that the need for both pressure and support for safety at work is everyone’s concern.

Discussion Questions:

  1. How do businesses benefit from promoting programs like Youth Safety Days?
  2. What are the injury and fatality rates for young workers in your province?
  3. What programs are in place to prevent and reduce harm to this targeted group of workers?
  4. What types of Health and Safety protocols do you advise an employer to put into place to ensure that summer students and young workers stay safe at work?
  5. What do you do to promote safe work practices at work?

You Must Investigate

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There is a reason workplaces are governed by legislation including Health and Safety laws. Most of us want to believe that people in the workplace will do the right thing in the absence of the law. The reality is, however, that laws exist because people do not do the right thing or, even worse, they do not do anything at all unless they are forced to comply with prescribed statutes and regulations.

A prime example of this comes from the amendments to the Occupational Health and Safety Act (OHSA) of Ontario dealing with workplace harassment complaints. In 2010, the OHSA was amended to include employer obligations with regard to workplace harassment under Bill 168. These amendments included psychological harassment and bullying for any reason and expanded the scope of what harassment looks like beyond the previous limitations which were based on prohibited grounds as defined by the Ontario Human Rights Code. While these changes were significant, they did not go far enough until the implementation of Bill 132 in 2016 . This bill legislated the obligations of the employer to investigate any harassment complaints linked to the workplace. The OHSA in Ontario now prescribes what, how, and who must conduct a harassment investigation on the part of the employer.

Click here to read the requirements of the employer to investigate.

It should be no surprise that these increasing investigative obligations have lead to increases in the number of complaints. On the one hand, the fact that employers must ensure that they have met their due diligence obligations is a good thing. On the other hand, it also means that every complaint must be investigated no matter what the perceptions of that complaint may be.

This dichotomy is explored and explained in a recent article written by employment lawyer, Ed Canning.

Click here to read the article.

As uncomfortable as it may be to read the case outlined by Mr. Canning, it does reiterate the fact that just because someone says they are being harassed, does not mean that harassment, as defined by the law, has actually taken place.

How do we know? By ensuring that an effective and thorough harassment investigation has been completed. Not just because the law requires it to be done, but because it is, indeed, the right thing to do.

Discussion Questions:

  1. What steps can the HR professional put into place to ensure that an objective investigation into a workplace harassment complaint is implemented?
  2. How will you deal with a disgruntled employee who, from your perspective, has a legitimate workplace concern that does not fall into the realm of harassment?
  3. What penalties are in place if the employer is found not to have followed their legal obligations under the Occupational Health and Safety Act with regard to harassment investigations?