Workplace Violence

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?

Dangerous Work

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A bag of money and gavel represent many legal expenses.
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Some workplaces are inherently dangerous. Often we think of these dangers arising from physical or environmental agents that could cause harm to the worker on a day-to-day basis. The human element is also a very real source for contributing to a dangerous workplace, especially in organizations that serve vulnerable and disenfranchised members of our society.

Ontario’s Waypoint Centre for Mental Health Care is a facility that treats patients with severe and complex mental health issues and disorders. In the spring of 2016, a patient at the center was able to access two screwdrivers and stabbed several workers, causing them serious injury.

Almost a year later, the Ministry of Labour has laid three charges against the Centre under the Occupational Health and Safety Act. These charges include the employer’s failure to take every reasonable precaution to protect workers; failure to ensure that measures and protections were established for workers; and failure to have health and safety procedures in writing.

Click here to read an article about this case.

As noted in the article, if the employer is found guilty of, or pleads guilty to, these charges they may be faced with a fine of up to $500,000 and other potential penalties.

The Waypoint Centre has responded, as noted in the article and as posted on their website.

This case shows us that policies and procedures on their own do not make workplaces safe. It is clear that the employer must engage risks proactively, especially in a high-risk workplace where danger lies in human behaviour that may be volatile and unpredictable. The employer must act in order to ensure that all persons, both employees and patients alike, are able to have some assurance of living and working in a safe environment.

Discussion Questions:

  1. As the Health and Safety Manager in this situation, what steps would you take to ensure that workers feel safe?
  2. How could you promote a safe workplace in an inherently dangerous work environment?
  3. If you were the employer in this case, how would you plead and what would be the result?

Bill 132: Expanding accountability?

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Puzzle pieces: safety and committee
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On September 8, 2016, Bill 132 An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters, came into force in Ontario. This act provides an amendment to the province’s Occupational Health and Safety Act with respect to an increased scope of requirements for employers and workplaces handling sexual harassment complaints.

 

As is always the case when a legislative change comes into force, the HR professional can and should access numerous online resources that provide guidance for interpretation and implementation of new requirements.

Click here to read the full text of Bill 132.

Click here to read an overview of Bill 132 by Occupational Safety Group Inc.

Click here to read a legal interpretation of Bill 132 prepared by Jessica Young with Stringer LLP.

There is no doubt that this legislative change will be received with mixed reactions. On one hand, most employers will be able to incorporate and shape their existing workplace policies on sexual violence and sexual harassment to ensure compliance with the new requirements.

On the other hand, there will be resistance from employers who do not perceive a justification to increase their employment-related legal obligations, no matter how important this legislative change may be. As such, this amendment will provide many opportunities for further exploration and discussion as it is tested through implementation.

An initial point of interest is the new requirement for employers to consult with the Joint Health and Safety Committee on the development and maintenance of a written harassment policy and supporting procedures. This is a significant change. It appears to be based on the spirit of the Occupational Health and Safety Act, which makes health and safety a joint responsibility of both the employer and the worker.

In a truly collaborative environment, individuals should become more engaged and involved in ensuring the personal safety of their workplace colleagues, especially in relation to matters of sexual violence and sexual harassment. No matter how difficult such a joint process may be, it should create an increase in shared awareness, accountability and active involvement in making a positive organizational change.

Discussion Questions:

  1. How can the Joint Health and Safety Committee in any organization increase shared accountability for workplace safety with regard to sexual harassment in the workplace?
  2. Why do you think Bill 132 came into force in Ontario?
  3. What do you think are the most important elements of Bill 132?
  4. As an HR practitioner, what can you do to promote a workplace that is free from sexual harassment and workplace violence?

The Tsunami of Security Issues!

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Employee Security: How Far should you go? Are you doing enough?

business man stop violence concept background
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Click here to read the article on employee security.

Concerns regarding employee security have been building for years since Lori Dupont’s murder in her Ontario Workplace.

 Click here to read an article about this case.

Violence in the workplace legislation such as Bill 168 have been implemented, and now there is greater emphasizes on the courts to be less tolerant of employers who do not meet their minimal workplace security legal obligations.

Click here to read the legislation Bill 168.

All employers must take warning, the courts are giving clear direction on how far reaching an employers’ obligations is in for the prevention of violence in the workplace. The Ministry of Labour laid five charges against an Ontario mental health centre in relation to the security and the prevention of violence in the workplace and a ruling has been rendered:

“A mental health centre must install a new electronic alarm system at its site as well as provide improved employee training and hire properly trained security personnel who will be present 24/7.”

What the Union is saying about this case:

“For the first time in Ontario history, a quasi-judicial body has confirmed that security personnel have a role to play on a health care team,” he said. “This is an extremely significant conclusion, not just for Brockville Mental Health Centre, but for mental health care facilities across the province.”

The employer has been ordered to install security systems but also to hire security guards. So the tsunami is here and rightfully so: all employees deserve not to be exposed to workplace violence.

But why is this ruling so unusual? The courts have told an organization that they must hire specific employees, in this case security guards. This has an impact on an organization’s HR and staffing budgets. Usually workplace H&S violations result in fines and the organization must decide on its own on the direction it must take to comply. The courts in this case were very directive on what was required to ensure the prevention of violence in the workplace, and it requires the funding of more security guards.

As with most employment matters it is always better to pave your own path rather than having a third party or the courts order what you must do. It is clear in Ontario that employers must take workplace violence prevention as seriously as society and our courts are.

Discussion Questions:

  1. Please explain the value of conducting a violence in the workplace risk assessment.
  2. Research a tool that you could use to conduct a violence in the workplace risk assessment. Why did you pick that tool, and what value does it have to an organization?