Maintaining the workplace in compliance with a complex system of statutory and common law obligations is a constant source of challenge to Canadian employers, including charities and non-profit organizations. Workplace violence is one of the areas that receives broad media coverage, especially when it erupts and results in serious injuries or fatalities, often at the hand of a disgruntled employee. More and more, the occupational health jurisdictions in Canada are becoming involved in legislating standards for the control of workplace violence, as this unfortunate reality must be addressed to provide a workplace as free from violence as possible. The obligations in British Columbia (“BC”), Alberta, Ontario and Québec will be reviewed briefly.
In BC, WorkSafe BC is responsible for administering compensation claims as well as for overseeing occupational health and safety matters. Workplace violence falls under the “General Conditions” in Part 4 of the Occupational Health and Safety Regulation. “Violence” for the purpose of the Regulation is defined as “the attempted or actual exercise by a person, other than a worker, of any physical force so as to cause injury to a worker, and includes any threatening statement or behaviour which gives a worker reasonable cause to believe that he or she is at risk of injury.” While the BC Regulation covers threats of violence, it does not address issues of workplace harassment.
Under the Regulation, employers are required to perform a risk assessment where there is a possible risk of violence inherent in the employment of a worker. The risk assessment by an employer must include consideration of the previous experience of the employer in the workplace, the experience of other employers who have similar workplaces, the attributes of its workers, and the location and circumstances in which work will be performed. The assessment should consider the number and nature of incidences of violence over a sufficient period of time so as to fairly represent past experience.
Employers who are affected are to have a Violence Prevention Program as part of their general occupational health and safety program. The Program must include a policy statement that acknowledges any risk of injury from violence to which workers are subjected, as well as prevention and response procedures. The Program should also identify the responsibilities of managers, supervisors and workers in addressing violence issues. Employers must also conduct periodic risk assessments to evaluate the nature and types of occurrences of violence in the workplace, and must prepare supplementary instructions for workers who are at risk of violence. All of this is designed to enable a worker to understand the work environment in which he or she will be employed, and to understand the arrangements that an employer has put in place to minimize the risk of violence.
The regulation of workplace violence was front and centre last year before the B.C. Court of Appeal which pitted a large oil company against WorkSafe BC. The case arose out of two instances of workplace violence at filling stations owned by the oil company. In one broadly reported incident, a worker was killed when dragged behind a car while trying to prevent a customer from driving away without paying for gasoline. The Board wrote orders against the oil company for failing to conduct a proper risk assessment, despite the objection of the company that the filling stations were all operated by franchisees who had direct control over health and safety issues.
While the oil company succeeded at trial, the Court of Appeal restored the original decision of the Board to broaden the definition of “employer” to encompass the company as franchisor. The rationale of the Board was that the oil company had sufficient control over the workplace of each franchisee to take appropriate steps to ensure the safety of workers from threats of workplace violence.
Alberta Occupational Health and Safety Code
Alberta requires employers to develop policies and procedures respecting potential workplace violence under the Part 27 of the Occupational Health and Safety Code. “Violence” means the threatened, attempted or actual conduct of a person, whether the conduct is at a work site or is work related, that causes or is likely to cause physical injury. Employers must instruct their workers about how to recognize workplace violence, and must communicate their policies and procedures related to workplace violence. They must also develop appropriate responses and procedures for reporting, investigating and documenting incidences of workplace violence. The procedures respecting workplace violence must be reduced to writing and must be made available to workers.
WorkSafe Alberta has developed a pamphlet on preventing violence and harassment in the workplace. It suggests that employers develop polices to address both of these issues. “Personal harassment” is defined for the purposes of the suggested policy to be in accordance with the definition used by the Canadian Human Rights Commission, and includes verbal abuse or threats, unwelcome remarks, jokes or taunting, displays of pornographic, racist or other offensive pictures, practical jokes which cause awkwardness or embarrassment, etc. Sexual harassment is also included.
Ontario – Amendments to Occupational Health and Safety Act – Bill 168
In addition to other forms of workplace violence, Ontario has recognized the dangers of domestic violence in the workplace, and has addressed this issue in a recent amendment to the Ontario Occupational Health and Safety Act in force June 15, 2010. The legislation will be the first such provision in Canada to recognize the dangers of domestic violence in the workplace. It provides that “if an employer becomes aware or ought reasonably to be aware, that domestic violence that would likely expose a worker to physical injury may occur in a workplace, the employer shall take every precaution reasonable in the circumstances for the protection of the worker.”
Employers must have a workplace violence and harassment policy in place by June 15, 2010, which takes into account the prospect of domestic violence occurring in the workplace. The legislation does not, however, define “reasonable” awareness, and has been criticized for this omission.
Québec – Psychological Harassment
Labour standards legislation in Québec protects workers against “psychological harassment”, which is defined as “any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affects an employee’s dignity or psychological or physical integrity and which results in a harmful work environment for the employee.” Sexual harassment is included in the definition. Québec’s legislation prohibits psychological harassment in the workplace, and places responsibility on the employer to take reasonable steps to prevent it, and put a stop to such behaviour when it is brought to their attention.
The concept of workplace violence in Canada has evolved to address many types of inappropriate behaviour in addition to those involving physical violence. Employers in all jurisdictions are required to take active steps to protect their employees from exposure to workplace violence. In some cases, harassment and psychological harassment are also prohibited. Employers can be even more proactive by conducting criminal record searches (subject to applicable privacy and human rights legislation) and inquiring about incidents of violence or harassment in the course of carrying out employees’ annual reviews.
It is important to understand the obligations that are incumbent on an employer in each Canadian jurisdiction where it does business. Miller Thomson LLP’s lawyers would be pleased to discuss the obligations which apply to your organization.