Understanding Employer Obligations Under Bill 168 Toronto Head Office: 350 Bay Street Suite 1000 Toronto, Ontario M5H 2S6 Mississauga Office: 2 Robert Speck Pkwy. Suite 750 Mississauga, Ontario L4Z 1H8 Understanding Employer Obligations Under Bill 168 Presented by: Lior Samfiru and Chuck Tahirali Prepared for: Breakfast Seminar Regarding Bill 168 T: 416.861.9065 F: 416.361.0993

Bill 168: Addressing Workplace Violence and Harassment Topics: What does Bill 168 do and how has the legal landscape changed? Conducting Risk Assessments and identifying areas to protect employees Changes to Employer’s obligations re domestic violence, work refusals and training of employees Drafting, implementing and enforcing new workplace policies and programs re violence and harassment Conducting a workplace investigation Employer’s legal exposure from workplace violence/harassment incidents Questions

Scope of the Problem 2005 Statistics Canada Survey 17% of all incidents of violence in Canada, including physical assault, sexual assault and robbery, happen in the workplace 71% of these workplace incidents are classified as physical assaults, and 24% as sexual assaults There is an average of 14 Canadian workplace homicides each year 46% of workplace violence incidents involve consumption of alcohol or drugs

Legislation Addressing Workplace Violence/Harassment Human rights law Common law Occupational health and safety (OHS) law Criminal law

Other Jurisdictions British Columbia Alberta Saskatchewan Manitoba Quebec (psychological harassment only) Nova Scotia Prince Edward Island Newfoundland & Labrador Federal Government (Canada Labour Code)

Before Bill 168 Limited obligations on employers to proactively prevent workplace violence/harassment Only obligation was to act as a reasonable employer in the face of a known problem, i.e. not to be negligent Little relevance to the type of business Employee would have to establish that employer knew of problem but failed to take appropriate remedy. This is very difficult to establish

After Bill 168 Employer has duty to proactively protect employees from workplace violence and harassment and cannot be reactive May be liable, even if not negligent The type of business may increase risk to employees which results in additional obligations on employers If employee suffers loss or damages, must only show that employer failed to comply with its obligations under Bill 168.

Occupational Health and Safety Act Who enforces the Act? - Ministry of Labour Inspectors Inspectors have broad powers that include inspecting any workplace, investigating any potentially hazardous situation and work refusal, ensuring compliance with the Act and regulations and initiating prosecutions. Employers, supervisors and workers must assist and co-operate with inspectors May issue orders and/or charges against individuals and/or corporations for not complying with the Act Significant penalties if found guilty Individuals = $25,000 per offence and/or 12 months in jail Corporations = $500,000 per offence

Bill 168 Components Defines Workplace Violence and Harassment Policy Requirements Risk Assessment Requirements Domestic Violence Provision Information and Instruction Incident Reporting Auditing Program

Bill 168 Components -cont’d- Summary of Employer Responsibilities: Assessments to measure the risk of workplace violence –involves looking at incidents within the workplace and analyzing them to determine the greatest risks for violence in the workplace Develop written and posted policy and procedures for addressing violence and harassment in the workplace as defined in the Act. Policy should define violence and harassment and set out procedures for employees to follow in the event of any contravention of the policy Development of a program to implement the policy and procedures based on the results of the risk assessment. This will include employee training on the policy and procedures as well as instructions for employees on their right to refusal of work Review and evaluation on the effectiveness of the policy and procedures at least annually

Workplace Violence Defined “The exercise of physical force by a person against a worker in a workplace that causes or could cause physical injury to the worker, An attempt to exercise physical force against a worker in a workplace that could cause physical injury to the worker, A statement or behavior that is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.” Definition focuses on the use or the threatened use, of physical force. There is no requirement that the exercise of physical force is intended to injure. This is intended to address the fact that certain individuals with psychological conditions or disabilities may not intend to injure, but may nonetheless exercise physical force against workers. In other words, intentional and unintentional physical force is considered workplace violence.

Workplace Harassment Defined “A course of vexatious conduct or comment against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.” Definition of workplace harassment in Bill 168 is broader than the definition of harassment under the Human Rights Code as it is not limited to prohibited grounds of discrimination such as race, sex, etc

Expertise Required? I am not an expert in workplace violence. How can I complete a violence risk assessment? Employers are not expected to be experts in workplace violence. However, you are expected to have and maintain a general knowledge of the level of violence within your own industry and general location. SOURCE: Reference Guide to the Violence in the Workplace Regulations, Occupational Health And Safety Division, Government of Nova Scotia

Scope of Assessment Is the Employer required to assess the risks of violence between individual workers? The Occupational Health and Safety Act does not require an employer to proactively assess the risks of violence between individual workers. It could be difficult for the employer to predict when violence may occur between individual workers. However, a review of incidents or threats of violence from all sources may indicate the origins of workplace violence and likelihood of violence between workers at a particular workplace. SOURCE: Occupational Health and Safety Branch, Ontario Ministry of Labour

Written or Unwritten? Subsection 32.0.3 (3) of the Occupational Health and Safety Act states: (3) An employer shall, (a) advise the committee or a health and safety representative, if any, of the results of the assessment, and provide a copy if the assessment is in writing; and (b) if there is no committee or health and safety representative, advise the workers of the results of the assessment and, if the assessment is in writing, provide copies on request or advise the workers how to obtain copies. 15 15

Risk Assessment You are not required to be an “expert” You are not required to assess the risks for violence between individual employees You are expected to assess the risks for violence specific to your workplace This may include a review of any information you have regarding incidents of violence in your workplace You may be expected to have and apply a general knowledge of the potential sources of violence in your general industry/sector or location

Role for Joint Health and Safety Committee or Rep You are expected to report the results of the risk assessment to the Joint Health and Safety Committee (or to the H&S Rep, if no committee or to employees-at-large if not Rep) Consider, as best practice, involving JHSC from the outset

Risk Assessment You are expected to assess the risks of workplace violence that may arise from, the nature of the workplace; the type of work; and the conditions of work.

Risk Assessment The risk assessment must take into account: circumstances specific to the workplace; circumstances that would be common to similar workplaces; and other prescribed elements (currently there are none).

Specific high risk factors accepted as predictors of violence Working with the public Direct contact with customers, clients, patients High risk activities Handling money or valuables, dispensing drugs, serving alcohol Location High crime area, office tower, permeable workplace High risk industry Health care, social services, retail, security, hospitality, financial services

Ministry of Labour Guidelines Activities or circumstances that may increase the risk of workplace violence include: Handling cash; Protecting or securing valuables; Transporting people and goods; Mobile workplace (e.g., a vehicle); Public or community contact; Working with unstable or volatile people; Working alone or with just a few people; and Working late nights or very early mornings.

What is a Risk Assessment? A risk assessment is a step-by-step process to: Identify factors and situations that could potentially contribute to workplace violence; Determine what control and prevention measures are already in place; Collect information to determine the risk of future violent incidents; and Using information collected to eliminate or minimize those risks deemed as unacceptable.

5 Steps to Risk Assessment Gather background information Previous experience with violence may be best predictor of future violence Obtain employee input Violence and harassment under-reported Inspect/audit the workplace Analyze the information gathered and obtained To determine the presence of conditions, operations or situations that might place workers at risk of violent incidents Record and communicate results to JHSC (if not already involved)

Re-assess Risk Re-assessments are required as often as is necessary to protect workers from workplace violence.  We recommend that re-assessments be conducted after any incident, as well as annually after your annual policies review.

Four Major Sources of Workplace Violence Worker-on-worker (between co-workers or from former employee) Those with legitimate relationship to organization (customers, clients, patients) Strangers, no legitimate relationship to organization (criminals, random violence) Those with personal connection to intended victim (e.g., domestic violence that manifests itself in the workplace)

Domestic Violence Under section 32.0.4 of the Ontario Occupational Health and Safety Act, if an employer becomes aware or ought reasonably to be aware that domestic violence that is likely to expose a worker to physical injury may occur in the workplace, the employer must take every reasonable precaution to protect the worker.

Selected Statistics (Source: Occupational Health & Safety Council of Ontario) The victims were female in 92 per cent Between 2002 and 2007, Ontario reviewed 230 domestic violence-related deaths (142 women, 23 children and 65 men). Most male deaths were abuser suicides after killing or attempting to kill their partners or ex-partners. In 92 percent of the cases, victims were female; the abusers male. The most common risk factor in domestic homicide was actual or pending separation. Research suggests that 70 per cent of domestic violence victims are also abused at work. 54% of domestic violence victims miss 3 or more days of work a month.

Who Do Victims Tell At Work Who Do Victims Tell At Work? (Source: Healthcare Domestic Violence Network of Sacramento County, CA) 66% of victims tell someone at work: Immediate supervisor (59%) Co-worker (46%) Another supervisor (6%) Human resource professional (1%) Victims don’t disclose because: They consider it to be a personal issue Feel embarrassed or ashamed Do not believe people at work can be trusted Fear of losing job or other negative consequences Partner works in same workplace

Domestic Violence The term “domestic violence” is not defined in the Act. Guidelines issued by the Ontario Ministry of Labour suggest that domestic violence is not limited to violence committed by a current or former spouse or intimate partner, but may extend to include any personal relationship – A person who has a personal relationship with a worker – such as a spouse or former spouse, current or former intimate partner or a family member – may physically harm, or attempt or threaten to physically harm, that worker at work. In these situations, domestic violence is considered workplace violence.

Domestic Violence Policies and programs should clearly stipulate that employees who believe they are at risk of violence in the workplace, including domestic violence, must advise the employer. Supervisors and managers may require training to recognize the signs of domestic violence most likely to be observed in the workplace and made aware of their responsibilities in this regard.

Signs of Domestic Violence Signs that domestic violence may be spilling over into the workplace may include: Employee receives frequent personal calls; demeanour changes during or after call. Employee receives large volume of personal e-mails from the same person. Spouse/family member shows up at workplace pestering co-workers, asking questions about the employee or the employee’s whereabouts or activities or tries to enlist cooperation of co-workers to gather information about employee. Spouse/family member displays angry, jealous or abusive behaviour at workplace, in parking lot or during company social function.

Elements of an Individual Safety Plan Will depend on particular circumstances, but may include: Notifying reception of the identity/description (photo) of the individual, with instructions not to admit (and call police). Moving targeted employee’s workstation to more secure area or, if warranted, re-assign to different role or work location. Removing a targeted employee’s name from the company directories, office door, etc.; allow calls to be screened. Pre-program emergency numbers into phones. Providing an escort to/from vehicle; assign closer parking spot. Allow for changes in working hours or flexible hours, time off to attend court, lawyer, etc. Coordinate with police, if involved. Develop a code word or phrase that employee can use to alert a designed contact of a potential or emerging situation.

Legal Duties: Employers and Supervisors Prior to passage of Bill 168, various legal duties were imposed on Employers and supervisors, including the duty to ensure employees work in compliance with the Act and to take all precautions reasonably necessary to protect the health and safety of the worker. All of these duties apply, as appropriate, with respect to workplace violence

Information, Training and Instruction In addition to these pre-existing duties, as a result of Bill 168, the Act now explicitly requires that: An employer shall provide a worker with information and instruction that is appropriate for the worker on the contents of: the policy and program with respect to workplace violence the policy and program with respect to workplace harassment

Information, Training and Instruction Merely posting policies in the workplace or providing copies to affected employees is not sufficient to satisfy the requirement of providing instruction. Specific training and information sessions are required, appropriate to the worker, which may include giving consideration to languages spoken in the workplace other than English. In some workplaces, risk-specific training may be required, e.g., with regards to handling money, dealing with volatile clients, working in or travelling to high crime areas, and so on.

Information, Training and Instruction All workers should: know how to summon immediate assistance; know how to report incidents of workplace violence to the employer or supervisor; know how the employer will investigate and deal with incidents, threats or complaints; know, understand and be able to carry out the measures and procedures that are in place to protect them from workplace violence; and be able to carry out any other procedures that are part of their employer\s programs. Source: Ministry of Labour Guidelines

Persons with a History of Violent Behaviour The duties of Employers and Supervisors extends to include the duty to provide information, including personal information, related to a risk of workplace violence from a person with a history of violent behaviour, but only if, the worker can be expected to encounter that person in the course of his or her work; and the risk of workplace violence is likely to expose the worker to physical injury. No employer or supervisor shall disclose more personal information in the circumstances than is reasonably necessary to protect the worker from injury.

Persons with a History of Violent Behaviour “Personal information” could include the name of an individual with a history of violent behaviour. In order for an employer or a supervisor to discharge these statutory duties with regards to a person with a history of violent behaviour, it may be necessary to disclose the name of the individual in question. Indeed, it may be unavoidable.

Not a “Witch Hunt” “Due diligence” does not extend to compel an employer to make inquiries into the backgrounds of employees in the absence of a reasonable and compelling reason to do so. This provision is not intended to be pre-emptive in nature, i.e., to compel you to pry into employee’s backgrounds in order to determine whether there is a history of violence which, in the normal course, you would be completely unaware.

Limited Duty of Disclosure Triggered only in very specific circumstances: the individual at issue has a history of violent behaviour; other employees can be expected to encounter this individual, and the risk is such that physical injury is possible. A person may have a rather odious background, including a criminal record, without triggering the duty to disclose under the Act.

Persons with a History of Violent Behaviour Any disclosure of information in order to warn of a risk of violence must be accurate and limited to specific information necessary to discharge obligations to workers: Be objective, factual and accurate in communicating concerns Avoid opinions, subjective statements, inferences or innuendo; Provide information on a strict need-to-know basis; Avoid statements that may be untrue and/or harmful to a person's reputation; The information disclosed should allow workers to identify the person and, if appropriate, to understand what triggers his or her aggression.

Right to Refuse Work Due to Violence or Threat of Violence A worker may refuse to work or do particular work where he or she has reason to believe that, any equipment, machine, device or thing the worker is to use or operate is likely to endanger himself, herself or another worker; the physical condition of the workplace or the part thereof in which he or she works or is to work is likely to endanger himself or herself; workplace violence is likely to endanger himself or herself; or any equipment, machine, device or thing he or she is to use or operate or the physical condition of the workplace or the part thereof in which he or she works or is to work is in contravention of this Act or the regulations and such contravention is likely to endanger himself, herself or another worker.

Right to Refuse Work Due to Violence or Threat of Violence Two-stage process Two standards for assessing legitimacy of refusal First stage = subjective (genuine belief) Second stage = objective (would a reasonable person agree?) Fine line between insubordination and legitimate work refusal Worker may not be required to specifically invoke the Act

Right to Refuse Work Due to Violence or Threat of Violence At second stage, Ministry of Labour must be contacted No right to refuse work because of workplace harassment

Developing A Policy Where more than five workers are regularly employed at a workplace, Bill 168 requires that the employer must: Prepare a written policy with respect to workplace violence and workplace harassment Review policy as often as needed, but at least annually Post policy 45 45

Developing A Policy - cont’d - Develop a policy that deals with harassment and violence* The policies should include: Purpose (to eliminate violence/harassment and ensure safe work environment) A definition of workplace violence and harassment An indication that the employer will not tolerate workplace harassment or workplace violence Description of the types of violence and harassment: bullying, sexual harassment, physical assault, stalking, racial harassment. Complaint Procedure (including who will accept complaint) identify that there will be consequences for breaches of the policy; * Specific reference to jurisdictions other than Ontario and their definitions of workplace violence and harassment should be considered before the policy is implemented

Developing A Policy - cont’d - The policy should also include: Examples of what could be harassment (e.g. shouting, profanity, throwing things, embarrassing comments, cyber-bullying) Examples of what is not considered harassment (e.g. negative performance reviews, disciplinary measures, requests to work additional time) Assurances that all complaints will be kept confidential

Implementing Harassment Violence Prevention Policy Reasons employers must make sure policy is properly implemented: So that all employees know of expectations and processes Be in a better position to discipline employees for breach of policy Be in a better position to defend against a claim for damages resulting from workplace violence/harassment

Implementing Policy - cont’d - Policy should be circulated to all employees Managers should be trained to answer any questions arising from policy Have meetings with all employees (or, with groups of employees at a time) to introduce the policy and go over key features of policy Have all employees sign a form acknowledging that they received the policy and have had an opportunity to review it and ask questions Every 2- 3 years circulate another copy of the policy and have employees sign acknowledgment again With respect to new hires: refer to policy in contract of employment and enclose a copy with job offer. New employee should sign a separate acknowledgment.

Violence/Harassment Prevention Program Employer must develop and maintain a program to implement the harassment policy and the violence policy Program shall include written measures and procedures: To control risks likely to expose worker to physical injury For summoning immediate assistance when workplace violence occurs or is likely to occur The process the employer will utilize to investigate and deal with incidents and complaints of workplace harassment Program must be reviewed yearly  

Violence/Harassment Prevention Program Program shall include written measures and procedures: For workers to report incidents of workplace violence and harassment to the employer or supervisor On how the employer will investigate and deal with incidents or complaints of workplace violence and harassment

Investigations Why conduct an investigation? Merits of using an external versus an internal investigator Steps to consider prior to starting the investigation

Features of a Proper Investigation Complaints must be taken seriously and acted upon promptly. The investigator should be independent and objective. The investigator should be properly trained in investigation techniques. If the investigator is an internal investigator, ensure he/she is neutral to the parties involved in the complaint. The investigator should not be in a position of authority over any of the parties to the complaint.

Features of a Proper Investigation Take complaint seriously and act upon it promptly Use an independent, objective and neutral investigator, ideally experienced in investigation techniques Comply with your own internal policies and procedures Protect confidentiality to the greatest extent possible Proceed quickly, but not too quickly (rule of thumb is to double expected time)

Features of a Proper Investigation Have complainant reduce complaint to writing or obtain signed statement after initial interview Insist on cooperation as a duty of employment Interview everyone referred to in the complaint Consistent opening comments explaining purpose, confidentiality Give the alleged harasser the opportunity to respond to every complaint Talk to everyone the alleged harasser identifies as being a witness or having relevant information

Features of a Proper Investigation Track to ground any information that comes out of interviews, review related documents, records Go back to witnesses, complainants or alleged perpetrators to find out response to additional or contradictory information obtained Take detailed notes of all interviews and, as appropriate, have interviewees review notes or summary statement and sign as accurate Type notes as soon as possible after interview, i.e., while memory is fresh

Features of a Proper Investigation Allow people to contact investigator after interview if additional information recalled Two interviewers often ideal for several reasons Ensure confidentiality (walls have ears). Consider off-site interviews Tour work sites where incidents alleged to have occurred Avoid “if there’s smoke, there’s fire”, both before (bias) or after (undermine outcome and conclusions)

Features of a Proper Investigation Make findings of credibility, if necessary Make an objective determination based on balance of probabilities standard Advise participants of right to be free from reprisals and to file a complaint in the future Follow up to ensure no reprisals and proper adjustment after investigation closed

Disciplining Employees for Breach of Policy Discipline should always be commensurate with offence Remember, employer has several forms of discipline available: warning, suspension, last chance arrangements, termination Be particularly careful in disciplining long-service employees Consider implementing progressive discipline policies Discipline must be recorded in writing including response of employee (even if employee refuses to sign) Disciplinary measures must always outline expectations Follow up! Remember to maintain privacy of disciplined employee

Disciplining Employees - cont’d - Terminations: For cause: only if very serious incident which will make continued employment impossible, or if employee repeat offender For cause: remember that may still have to pay Employment Standards Act entitlements, unless employee guilty of willful misconduct Without cause: may decide to part ways with employee, despite absence of cause. In this case, it is best not to get into reason for termination Without cause: review contract of employment for termination clause and seek legal advice; remember, no such thing as “near cause”

Potential Damages Claims Constructive Dismissal Employer has duty to maintain proper work environment free of harassment and violence Where employer breaches this duty (intentionally or not), contract of employment deemed violated Employee can treat employment as being at an end and demand severance package Bill 168 makes it easier to pursue constructive dismissal claim because employee does not have to show that employer failed to react. Would only have to show that employer did not fully comply with obligations under the new legislation.

Potential Damages Claims - cont’d - Infliction of Mental Suffering If employee suffers psychological injuries as a result of harassment or violence, could hold employer liable Employee does not have to show that employee was negligent, just that employer failed to comply with Bill 168 Potential Damages exposure is significant (Sultz v. RCMP), could be liable to employee if cannot work again: general damages for mental suffering, special damages for past and future loss of income. Such claims were rare, but will be easier to establish as a result of Bill 168

Other Resources Ontario Ministry of Labour: http://www.labour.gov.on.ca/english/hs/pubs/wpvh/index.php - A Toolbox http://www.labour.gov.on.ca/english/pdf/wvps_toolbox.pdf (Includes Suggested Risk Assessment Template) Canadian Centre for Occupational Health and Safety: http://www.ccohs.ca Ontario Safety Association for Community and Healthcare: http://www.hchsa.on.ca Domestic Violence Doesn’t Stop When Your Worker Arrives at Work: What Employers Need to Know to Help - http://www.hchsa.on.ca/products/free_resource.shtml

Lior Samfiru or Chuck Tahirali Toronto Head Office: 350 Bay Street Suite 1000 Toronto, Ontario M5H 2S6 Mississauga Office: 2 Robert Speck Pkwy. Suite 750 Mississauga, Ontario L4Z 1H8 For further information, please contact: Lior Samfiru or Chuck Tahirali Tel: (416) 861-9065 Fax: (416) 361-0993 www.stlawyers.ca www.coiri.com Presented by: Lior Samfiru and Chuck Tahirali Prepared for: Breakfast Seminar Regarding Bill 168 Trusted. Dedicated. Experienced.