Bill 168 - Workplace Violence & Harassment Obligations Exposed
Between the media spotlight surrounding the Jian Ghomeshi/CBC case, the Liberal MPs indiscretions on Parliament Hill and the hefty damages levied against Walmart Canada for failing to properly investigate workplace harassment (Boucher v Walmart Canada, ONCA 2014) – it is no surprise employers now have a heightened awareness of what can go horribly wrong when Workplace Harassment claims are mishandled.
As such, it would be prudent for employers (big or small) to understand their employment obligations and how best to comply as it pertain to issues surrounding Workplace Violence & Harassment (Bill 168-Occupational Health & Safety Act).
Let’s examine just what employers need to know & DO as it relates to Bill 168 to stay out of the hot waters:
1.
Create
Workplace Violence and Harassment policies
a.
Policies must be in writing and posted in a
conspicuous area in the workplace for those employers with 6 or more employees
2.
Develop
and conduct regular workplace violence risk assessments
a.
Employers must assess the risk of workplace
violence based on the nature of the workplace (i.e. office layout), type
of work (i.e. handles cash) or conditions of work (i.e. mobile workers)
b.
Assessments need to consider an employer’s own
workplace conditions, as well as those in similar workplaces (i.e. may share common risks with those in the same
industry such as health care)
c.
Employers with multiple locations (i.e. retail
store) should assess each location
separately for its own unique risks of workplace violence in addition to the
common risks.
d.
Employers must advise the joint health and
safety committee (or the health and safety representative in smaller workplaces)
of the results of the assessment
i.
If the assessment is in writing, a copy must be
provided;
ii.
If the workplace does not have a joint health
and safety committee or a health and safety representative, the workers must be
advised of the results of the assessments and of how to obtain a copy of the
assessment (if the assessment is in writing).
e.
Bill 168 requires that reassessments be
conducted “as often as is necessary”. Some
trigger points can be when a worker undergoes significant changes to the
condition and type of work (i.e. working late shift or handling cash), after an
incident of workplace violence or annually (whichever occurs first)
3.
Develop
and maintain programs to implement such policies company-wide
a. Workplace
Violence programs must include measures and procedures to:
i.
Control the risks identified in the
workplace violence assessment;
ii.
Call for immediate assistance when workplace
violence occurs or is likely to occur, or when a threat of workplace violence
is made;
iii.
Report incidents or threats of workplace
violence to the employer or supervisor;
iv.
Establish how the employer investigates and
manages incidents, complaints or threats of workplace violence.
b. Workplace
Harassment programs must include:
i.
Measures and procedures for reporting,
investigating and dealing with incidents of workplace harassment
4. Properly investigate all claims of workplace violence, harassment and discrimination
a. Bill
168 imposed strict obligations for employers to take all reasonable steps to
promptly address and investigate any such allegations within the workplace
b. It
is this specific obligation that employers in all 3 recent cases (CBC, Federal
Government & Walmart Canada) made blunders in thus exposing them to significant liabilities
5.
Inform
and train employees on the policies and procedures put in place
a.
Simply creating the required policies will not
be enough to satisfy Bill 168 if employees don’t know or understand them. It is incumbent on employers to ensure all
employees are educated and trained on the procedures for Workplace Violence and
Harassment
b.
Certain individuals will require more training
than others (i.e. managers)
6.
Employers
must “take every precaution reasonable in the circumstances” to protect workers
a. This
obligation on the employer arises only if they are aware, or ought reasonably
to be aware, of a situation that can pose a risk to the health and safety of a
worker including domestic violence
b. There’s
also a requirement for employers to in certain circumstances disclose personal
information to a worker about a person with “a history of violent behavior” who
pose a risk of workplace violence. This
is triggered if:
i.
the worker can be expected to encounter the
violent person in the course of his or her work; and the
ii.
risk of workplace violence is likely to
expose the worker to physical injury
7.
A
worker may refuse work if he/she has reason to believe that his/her health and
safety is in danger and at risk of workplace violence
a. The
right to refuse unsafe work does not apply to certain workers if
i.
the danger
is “inherent” in the work or is a “normal condition of employment” (i.e
police officer or firefighter);
ii.
the refusal would endanger the life, health
and safety of another person
In reference to Jian Ghomeshi's case with CBC, workplace harassment policies and procedures may have very well been in place. However, since it was reported that no workplace investigation took place at the outset despite management being informed initially of the incidents of harassment, CBC's liabilities just expanded beyond Jian Ghomeshi himself to other workers/victims within the workplace for failing to provide a harassment-free work environment. As a result, CBC will likely be reeling from this blunder costing them both financially and reputation-wise for years to come.
Based on the key Bill 168 obligations I've summarized, although they can be onerous to satisfy, especially for smaller companies lacking in time and resources to dedicate, the repercussions of non-compliance is what employers need to take heed of.
The key question is, can your company afford not to comply with Bill 168?
More detailed information on Bill 168-Workplace Violence and Harassment provisions can be found via the Ministry of Labour's website here.
The content shared in this blog post is for general information only and does not constitute legal advice.
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