Employer Obligations – Workplace Violence & Harassment (Bill 168 & Bill 132)

Between the media spotlight surrounding the Jian Ghomeshi/CBC case, the Liberal MPs indiscretions on Parliament Hill and the hefty damage awards (over $400,000) levied against Walmart Canada for failing to properly investigate workplace harassment (Boucher v Walmart Canada, ONCA 2014) – it is no surprise employers have a heightened awareness of what can go horribly wrong when workplace harassment claims are mishandled.

More than ever, it would be prudent for employers (big or small) to understand their employment obligations and how best to comply with Workplace Violence & Harassment laws under Bill 168 and Bill 132 specific to the Occupational Health & Safety Act. 

Let’s examine just what Ontario employers need to know & do to meet mandatory requirements.

 

Create Workplace Violence and Harassment policies

Policies must be in writing and posted in the workplace for those employers with 6 or more employees. 

The definition of workplace harassment has also been expanded under Bill 132 to include workplace sexual harassment which is defined as:

  • engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity, or gender expression, where the comment/conduct is known or ought reasonably to be known to be unwelcome, or
  • making a sexual solicitation or advance where the person making it is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to now that the solicitation or advance is unwelcome.

 

Develop and maintain prevention programs 

This must be done in consultation with the Joint Health & Safety Committee (JHSC) or Health and Safety Representative depending on the size of the organization.  

Workplace Violence programs must include measures and procedures to:

  • Control the risks identified in the workplace violence assessment;
  • Call for Immediate assistance when workplace violence occurs or is likely to occur, or when a threat of workplace violence is made;
  • Report incidents or threats of workplace violence;
  • Establish how the employer investigates and manages incidents, complaints or threats of workplace violence.

Workplace Harassment programs must include:

  • Measures and procedures for reporting incidents and who to report to if the employer or supervisor is the alleged harasser;
  • How incidents or complaints will be dealt with and investigated;
  • How the information acquired during the investigation will be kept confidential unless disclosure is necessary to properly investigate the complaint or take corrective action, or is otherwise required by law;
  • Informing the parties of a complaint in writing the results of the investigation and/or of any action taken.

 

Conduct an appropriate investigation into all claims of workplace violence, harassment and discrimination

Employers must ensure all complaints and allegations are promptly addressed and properly investigated.  Under Bill 132, employees can file a complaint with the Ministry of Labour (MOL) if this requirement is not complied with.  The MOL inspector has the power to require production of documents related to the investigation and order an external investigation by a neutral third-party at the employer’s expense. 

 

Develop and conduct regular workplace violence risk assessments

Employers must assess the risk of workplace violence based on the nature of the workplace (i.e. layout of floorplan), type of work (i.e. handles cash) or conditions of work (i.e. mobile workers).

Assessments need to consider an employer’s own workplace conditions, as well as those in similar workplaces (i.e.  there may be common risks shared within the same industry such as health care even though an employer may not yet experienced any workplace violence incidents themselves) .          

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.

Employers must advise the joint health and safety committee (or the health and safety representative in smaller workplaces) of the results of the assessment.

  • If the assessment is in writing, a copy must be provided
  • 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)

Bill 168 requires that re-assessments 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, handling cash), after an incident of workplace violence or annually (whichever occurs first).

Risk assessments should be conducted by competent individuals who have broad knowledgeable of the applicable employment laws and an understanding of the workplace.

 

Inform and train employees on the policies and procedures put in place

Simply creating the required policies will not be enough to comply if employees don’t know or understand them.  It is incumbent on employers to ensure all employees and managers are educated and trained on the policies and procedures for Workplace Violence and Harassment. 

 

Employers must “take every precaution reasonable in the circumstances” to protect workers

This obligation on the employer arises 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.

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:

  • the worker can be expected to encounter the violent person in the course of his or her work; and
  • the risk of workplace violence is likely to expose the worker to physical injury

 

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

The right to refuse unsafe work does not apply to certain workers if

  • the danger  is “inherent” in the work or is a “normal condition of employment” (i.e police officer or firefighter);
  • the refusal would endanger the life, health and safety of another person

Now let’s assume action items outlined above all been implemented, the next level of scrutiny involves whether the policies and procedures set, have actually been consistently FOLLOWED within an organization in the event of an incident.  

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 and Bill 132 obligations summarized, although they can be onerous to satisfy, the repercussions of non-compliance is what employers need to take heed of.

More detailed information on Workplace Violence and Harassment provisions can be found via the Ministry of Labour’s website.

 

 

 

The content shared in this blog post is for general information only and does not constitute legal advice. 

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