Presentation on theme: "Lawyers Patent and Trade-mark Agents Lawyers · Patent and Trade-mark Agents WORKPLACE VIOLENCE: LEGAL OBLIGATIONS AND RESPONSIBILITIES November 30, 2005."— Presentation transcript:
Lawyers Patent and Trade-mark Agents Lawyers · Patent and Trade-mark Agents WORKPLACE VIOLENCE: LEGAL OBLIGATIONS AND RESPONSIBILITIES November 30, 2005 Health Care Health and Safety Association of Ontario Eric M. Roher Partner Borden Ladner Gervais LLP phone:
Lawyers · Patent and Trade-mark Agents 2 What is Workplace Violence? Any action, act, omission or incident in which an employee or worker is abused, threatened, harmed, injured or assaulted arising out of his or her employment or work … Norman Keith Canadian Health and Safety Law
Lawyers · Patent and Trade-mark Agents 3 What is Workplace Violence? (continued) Any act of aggression that causes physical or emotional harm, including assault (any attempt to inflict physical harm on a worker), threat, verbal abuse, sexual harassment, and racial or religious harassment. Ontario Public Service Employees Union
Lawyers · Patent and Trade-mark Agents 4 Violence includes: Assault (threat or injury) Battery (unlawful force) Threats (intent to harm) Sexual harassment (unwelcome advances) Verbal abuse Ontario Nurses Association
Lawyers · Patent and Trade-mark Agents 5 Violence also includes: Name-calling Swearing Hitting Biting, scratching and pinching Using a weapon British Columbia Nurses Union
Lawyers · Patent and Trade-mark Agents 6 Statistics and Trends More than ½ of Registered Nurses have been physically assaulted in the workplace. Study from the Registered Nurses Associations in Manitoba andOntario
Lawyers · Patent and Trade-mark Agents 7 Statistics and Trends (continued) Of 400 Nurses surveyed, 63% had experienced verbal abuse in the past year. 35% experienced attempts at physical harm. 21% had been victims of physical attack. Nova Scotia Study
Lawyers · Patent and Trade-mark Agents 8 Statistics and Trends (continued) Of 800 Ontario Nurses surveyed, 59% had been physically assaulted on the job in their career. 35% in 12 months prior to the survey. Ontario Nurses Association, 1995
Lawyers · Patent and Trade-mark Agents 9 Statistics and Trends (continued) Younger clinicians and nurses are more often the target of client aggression, due to limited experience and lack of training. Health care workers face similar level of risk to that of police. (Boyd 1995)
Lawyers · Patent and Trade-mark Agents 10 Common Law Principles Negligence. Duty of care, breach, causation, and damages. Protect individuals from reasonably foreseeable risks of injury. Legal principles inform violence prevention and emergency response strategies.
Lawyers · Patent and Trade-mark Agents 11 Burden of Proof Burden of proof is on the plaintiff to show, on the balance of probabilities, that the defendant did not meet the standard of care of a reasonable person in given circumstances.
Lawyers · Patent and Trade-mark Agents 12 Elements of Negligence Defendant owed a duty of care to the plaintiff. Defendant breached the duty of care. Defendants breach was cause of plaintiffs injury. Plaintiff suffered actual damage or loss as a result of the injury.
Lawyers · Patent and Trade-mark Agents 13 Foreseeability Key in determination of whether an employer had legal responsibility to take action. Not only what an employer knew, but also what it ought to have known. Employer took reasonable steps to reduce risk of injury/accident.
Lawyers · Patent and Trade-mark Agents 14 Applicable Legislation Occupational Health and Safety Act Workplace Safety and Insurance Act Ontario Human Rights Code Compensation for Victims of Crime Act Regulated Health Professions Act Criminal Code (Canada)
Lawyers · Patent and Trade-mark Agents 15 Laws established Violence is unacceptable. Offenders are liable for their actions. Victims or relatives may be compensated for injuries resulting from an act of violence. Duties and responsibilities for all workplace parties.
Lawyers · Patent and Trade-mark Agents 16 Occupational Health and Safety Act The OHSA came into force in Designed to set administrative, legal procedural standards for health and safety in Ontarios workplaces. Achieves these ends through an internal responsibility system. Places responsibility for health and safety on the stakeholders by creating duties for employers, supervisors and workers.
Lawyers · Patent and Trade-mark Agents 17 OHSA – Employers Duties Employer shall provide information, instruction and supervision to a worker to protect his/her health and safety – s.25(2)(a). Employer must take every reasonable precaution under the circumstances for a workers protection – s.25(2)(h).
Lawyers · Patent and Trade-mark Agents 18 OHSA – Employers Duties (continued) Employer must prepare and review, at least annually, a written occupational health and safety policy. Must develop and maintain a program to implement that policy – s.25(2)(j).
Lawyers · Patent and Trade-mark Agents 19 OHSA – Supervisors Duties Supervisor shall advise a worker of any potential or actual danger to the workers health and safety of which the supervisor is aware – s.27(2)(a). Supervisor shall provide a worker with written instructions about protective measures and procedures – s.27(2)(b). Supervisor shall take every reasonable precaution in the circumstances for the workers protection – s.27(2)(c).
Lawyers · Patent and Trade-mark Agents 20 OHSA – Workers Duties Workers are required to report to his or her employer or supervisor the existence of any hazard – s.28(1)(d). The requirement is interpreted to include any threat of violence or presence of a violent person.
Lawyers · Patent and Trade-mark Agents 21 Ministry of Labour - Inspectors Have the authority to issue work orders and stop-work orders. Have exercised this authority when they deem that a hazard exists because of inadequate staffing levels. Will determine if employee has been provided suitable training and policies to protect from workplace violence.
Lawyers · Patent and Trade-mark Agents 22 Adjudicators Have ruled that health care workers are entitled to information about aggressive or violent clients. Have ruled that employers must provide adequate staffing levels as a protective measure.
Lawyers · Patent and Trade-mark Agents 23 Risk of Violence Where inspectors determine that workers are exposed to a risk of violence, will direct the employer: to address the risk to assure appropriate workplace program is implemented that the joint health and safety committee be consulted in workplace violence prevention program
Lawyers · Patent and Trade-mark Agents 24 Ontario Human Rights Code Harassment is a prohibited activity under the Code. Employee has a right to freedom from harassment in the workplace because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or handicap.
Lawyers · Patent and Trade-mark Agents 25 Human Rights Code Harassment is defined as: engaging in a course of vexatious comment or conduct that is known or ought reasonably known to be unwelcome. Harassment includes inappropriate comments, jokes or suggestions. Sexual harassment includes unwanted touching.
Lawyers · Patent and Trade-mark Agents 26 Human Rights Code (continued) Employers must prevent or stop harassment in the workplace. Workers have a right to file a complaint with the Ontario Human Rights Commission. Employers cannot penalize a worker who has filed a complaint.
Lawyers · Patent and Trade-mark Agents 27 Criminal Code Assault is determined as: Intentional application of force to another person without that persons consent. Includes attempts or threats to use force, including gestures that imply a serious threat.
Lawyers · Patent and Trade-mark Agents 28 Criminal Code (continued) If the police lay a charge under the Criminal Code, the Crown Attorney will prosecute the case. The victim will be called as a witness. Standard of proof is beyond a reasonable doubt.
Lawyers · Patent and Trade-mark Agents 29 Risk Management Risk management is the process of planning, organizing and controlling activities that contain an element of risk of injury to the worker.
Lawyers · Patent and Trade-mark Agents 30 Risk Management involves the following steps: Identify and assess exposures to injury. Identify various risk management strategies to address these exposures. Select and implement the appropriate strategy or strategies. Monitor results and make improvements where necessary.
Lawyers · Patent and Trade-mark Agents 31 Health workers are especially at risk when: working alone, especially at night interacting with violent clients dealing with public complaints providing care and advice that impact on a clients life handling money or medications
Lawyers · Patent and Trade-mark Agents 32 Other practices that increase vulnerability to violence: understaffing in busy clinics or emergency departments letting staff work alone with clients having staff work at night in high crime areas failing to provide sufficient training failing to provide communication devices
Lawyers · Patent and Trade-mark Agents 33 Develop a Workplace Violence Prevention Program 1. Obtain management commitment and employee involvement. 2.Develop a policy, with clear goals and objectives. 3.Conduct a worksite risk assessment.
Lawyers · Patent and Trade-mark Agents 34 Develop a Workplace Violence Prevention Program (continued) 4.Put violence prevention, control and response measures in place. 5.Educate employees about the program and train them. 6.Evaluate the program and procedures.
Lawyers · Patent and Trade-mark Agents 35 Environmental Design Provide a calm atmosphere. Ensure furniture can not be used as a weapon. Keep areas well lighted. Maintain secured areas where public access is limited. Eliminate overcrowding in psychiatric facilities. Install and use security systems.
Lawyers · Patent and Trade-mark Agents 36 Program Objectives Develop a policy of zero tolerance for workplace violence. Describe the standard of behaviour expected of all persons in the workplace. Provide a mechanism that encourages employees to report all incidents promptly. Develop a plan for maintaining security.
Lawyers · Patent and Trade-mark Agents 37 Program Objectives (continued) Develop understood and communicated sanctions for violent acts. Train workers regarding the forms of workplace violence, its effects and how to prevent it. Provide for a procedure to review incident reports. Continually re-evaluate existing safety procedures.
Lawyers · Patent and Trade-mark Agents 38 Conclusion To create major changes in the workplace, the organization needs: a sense of urgency; a guiding coalition; and vision and strategy.
Lawyers · Patent and Trade-mark Agents 39 Conclusion (continued) Commitment of the employer to make workplace violence prevention a priority. Organizations management team must recognize the need to change. Overall will and allocation of resources to create a workplace violence prevention program and communicate it to stakeholders.
Lawyers · Patent and Trade-mark Agents 40 Someone has to do it and it is appallingly pathetic that it has to be us. Jerry Garcia
Lawyers Patent and Trade-mark Agents Thank You! Lawyers · Patent and Trade-mark Agents