Ear to the Ground - Spring 2010 - (Page 11)

LEGAL SPOTLIGHT C Y N T H I A R . C . S E F T O N A N D D AV I D S . R E I T E R Bill 168: Something Old, Something New WORKPLACE VIOLENCE AND harassment is not new. A 2004 Statistics Canada survey identified that 17 percent of violent incidents in Canada occurred in workplaces. To address the problem, the Ontario Government passed An Act to Amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters (Bill 168). It comes into force on June 15, 2010. As the Minister of Labour said, “The government has acted to protect workers from workplace violence. Everyone should be able to work without fear of violence in a safe and healthy workplace.” But are Bill 168’s protections really new? The answer is yes—and no. Under the pre-Bill 168 regime, employers had and still have many specific duties, including the general s. 25(2)(h) obligation to take “every precaution reasonable in the circumstances for the protection of a worker.” Workplace violence and harassment issues had been addressed by these provisions and labour grievances, complaints under the Ontario Human Rights Code, workers’ compensation claims for disability arising from employment and civil actions in the Courts. Bill 168 does not change the pre-Bill 168 landscape, rather, it clearly defines workplace conduct against which protection must be afforded and the manner in which protection must be provided. involve an “on the ground” identification of workers that could be exposed to workplace violence. A genuine upfront effort on the risk assessment, with real worker participation and an honest look at the possible problems, will help employers to prevent potential injuries and create a defensible position to OHSA charges. Employers are not specifically required to assess the risk of workplace harassment. However, prudent employers should consider some form of upfront workplace harassment assessment. Once assessments are conducted, results must be communicated to the joint health and safety committee (JHSC) and/or representatives. As a practical matter, it is wise to involve the JHSC or representative in the assessment itself. If there is no JHSC or representative, employers must advise their workers of the results. If the results are in writing, which they should be, they must be supplied to the JHSC or representative, or in the absence of either, workers must be provided with a copy or information on how to obtain a copy. The assessment must be updated and reviewed as often as necessary to address the workplace’s needs. Policies and Programs Employers must develop and post policies to address risks identified in assessments. It is critical that policies are updated and reviewed annually. The program must respond to the results of the assessment. The workplace harassment program should follow the same course. Workplace violence programs must include procedures for summoning immediate help when violence occurs or is likely to occur, for reporting incidents or threats of violence to superiors and for the investigation and resolution of complaints received through the reporting process. Workplace harassment programs must include procedures for reporting incidents of harassment to superiors, and for the investigation and resolution of complaints received through the reporting process. Employers should consider appointing one or more individuals to be the “report” person rather than relying on the organizational chart superior, because the latter could be the perpetrator of the violence or harassment. “Report” personnel should receive specific training and coaching on their role. Definitions Workplace violence is the exercise or attempted exercise of physical force by a person against a worker in a workplace that causes or could cause injury to the worker. Workplace harassment is defined as engaging in a course of vexatious comment or conduct against a worker, in a workplace, that is known or ought reasonably to be known to be, unwelcome. Bill 168 covers the conduct of workers, customers and members of the public. Bill 168 creates a new specific duty on employers to take every reasonable precaution under the circumstances to protect workers from domestic violence when they become aware, or ought reasonably to be aware, of domestic violence that would likely expose workers to physical injury in the workplace. While Bill 168 does not define domestic violence, the term has been interpreted in the criminal law context to include violence between any combination of immediate family members, irrespective of gender or sexual orientation. That definition will likely apply to the scheme of Bill 168. Sharing Information: Practical Problems Assessments Ontario’s employers must assess the risk of violence in their workplaces by June 15, 2010. The assessment should SPRING 10 Employers must provide workers information and instruction on the policies and programs as appropriate. A large group roll-out or training may not be sufficient. There 11

Table of Contents for the Digital Edition of Ear to the Ground - Spring 2010

Ear to the Ground - Spring 2010
President's Message
Watermain Replacement Projects Using HDD
Why Locating is Becoming Increasingly Difficult
Legal Spotlight
ORCGA's 2010 Symposium
2010 Orcga Board of Directors, 19 Industry Stakeholders and Five Members at Large: Working Together for a Safer Ontario
The Best in Class
Welcome to the Hall

Ear to the Ground - Spring 2010