Theresa Vince, Pierre Lebrun and Lori Dupont — their names have become synonymous with work-related violence, harassment or both.
Vince, a human resources manager at a Sears Canada store in Chatham, Ontario, was shot at work in 1997 by her boss, who had been sexually harassing her, before he turned the gun on himself; Lebrun, who had been teased about his stutter, took the lives of four former co-workers as well as his own when he went on a shooting rampage at an OC Transpo operation in Ottawa a decade ago; and Dupont, a nurse at Htel-Dieu Grace Hospital in Windsor, Ontario, was murdered at the facility in November of 2005 by her former boyfriend, a doctor at the hospital. He, too, committed suicide after injecting himself with anesthetic agents.
In past, violence and harassment were often viewed separately — with physical threat or harm fitting somewhat more easily into the traditional view of occupational health and safety than harassment’s sometimes slow, though ultimately damaging, barrage.
But inquests and commentary on the Vince, Lebrun and Dupont cases — not to mention developments in other Canadian jurisdictions — have demanded that Ontario consider ways to prevent violence and harassment from infiltrating workplaces. In April, the province responded by proposing changes to the Occupational Health and Safety Act.
Currently, orders can be issued under the act’s general duty clause relating to violence — as is the case for any work hazard. Between April and October of 2008, inspectors made 198 field visits and issued 185 orders citing violence, the Ministry of Labour (MOL) reports.
The amendments make violence-prevention obligations more specific. If passed, the OH&S Act would include definitions for workplace violence and harassment, as well as place an obligation on employers to develop programs to prevent such violence and harassment, take reasonable precautions to protect an employee from domestic violence in the workplace, and allow workers to remove themselves from harmful situations if they have reason to believe that they are at risk of imminent danger as a result of violence, the MOL notes.
The amendments are meant to help prevent workplace violence and harassment, including domestic violence that seeps into the workplace, the ministry adds.
The changes will create “serious and significant” obligations for employers, Barbara Humphrey, a partner at the Barrie, Ontario office of SBH Management Lawyers, notes in a brief.
The changes have “been seen by some as a final piece of the violence protection puzzle that has been missing in Ontario,” Cheryl Edwards and Jeremy Warning, both with Heenan Blaikie in Toronto, add in a brief of their own.
Should the changes move forward, Ontario would join other jurisdictions — among them, British Columbia, Alberta, Saskatchewan, Quebec and the federal government — in adopting legislative requirements specifically addressing work-related violence and/or harassment.
Ontario’s proposed amendments define on-the-job violence as “the exercise” and/or “an attempt to exercise” physical force “against a worker in a workplace that causes or could cause physical injury to the worker.” Harassment, for its part, 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.”
Humphrey suggests of the latter, “The scope and subjectivity of the definition will import considerable uncertainty for employers as to what will be treated as ‘workplace harassment’ under the [OH&S Act].”
Edwards and Warning say the wording incorporates nonphysical types of conduct that have, historically, not been considered a proper subject of regulation by or litigation under the OH&S Act, “but rather found their resolution through the civil courts and workplace safety and insurance and human rights regimes.”
Employees will have the right to refuse work if “they have reason to believe that they are at risk of imminent danger due to workplace violence,” the MOL reports. Edwards and Warning note, however, that their reading of proposed wording is that those protections would not extend to individuals being harassed.
The Ontario Nurses’ Association (ONA) in Toronto has voiced concern that acts falling short of the government’s definition of violence won’t require the same kind of employer response. “Waiting for the end point, which is someone being beaten, is not the time to act,” says Vicki McKenna, the ONA’s first vice-president.
To Humphrey, the draft changes, at a minimum, “would require any employer with direct or indirect knowledge of a domestic abuse or dispute issue that suggests the potential for violence [in the workplace] to pursue some degree of inquiry and develop a potential response.”
OUNCE OF PREVENTION
The amendments set out some parameters for a workplace violence control program which, among other features, must include measures to control identified risks, methods for summoning immediate help if violence is or is about to occur, procedures for workers to report violent incidents or threats to the employer, and clearly defined protocols on how employers investigate incidents, complaints or threats of violence.
A number of speakers at a workplace violence seminar in Toronto last January, organized by the Ontario Hospital Association (OHA), touched on best practices for prevention and control programs.
To the aforementioned list, Peter Martin said he would add well-defined consequences for contravening a violence/ harassment policy. However, the president of AFI International Group Inc. in Milton, Ontario cautioned employers against being overzealous, as zero tolerance policies can lead to unjust punishment.
Companies should act promptly and begin investigations into complaints or incidents soon after they learn of them, Normand Ct, head of employee relations for BMO Financial Group in Toronto, advised forum delegates. Doing so, Ct suggested, can help stave off repeated occurrences or escalated levels of violence.
In the wake of Vince’s death, Sears Canada created a workplace violence prevention program and revamped its harassment policies with the aid of outside consultants, Don Berezowski, the company’s associate vice-president of loss prevention and safety in Toronto, said at the forum. Integral to prevention efforts is the company’s Workplace Violence Response Team, comprised of specially trained staff. Members of the team are available 24/7 to respond to any complaints or incidents, Berezowski noted.
LEND A HAND
Of course, not all businesses have as many resources, a point made at the seminar by Judith Andrew, vice-president of the Ontario arm of the Canadian Federation of Independent Business in Toronto. Lacking financial and personnel resources, Andrew argued small-and medium-sized enterprises may require the assistance of the Ontario government to carry out violence risk assessments, training and facility improvements.
Disclosure of personal information may become a contentious aspect of the legislation, Edwards and Warning suggest. It is being proposed that, in certain circumstances, “an employer or supervisor would have a duty to provide to a worker… personal information related to a risk of workplace violence from a person with a history of violent behaviour.”
Beyond stating “no employer or supervisor shall disclose more personal information… than is reasonably necessary to protect the worker from physical injury,” the amendments fail to offer specific guidance on what information should (or should not) be relayed.
Joseline Sikorski, president and CEO of the Ontario Safety Association for Community & Healthcare (OSACH) in Toronto, notes in a statement that “integrating workplace violence prevention into clinical practice is essential to avert such risk and sustain a reduction in related incide
While many health care organizations have made “significant” advances in protecting employees, Sikorski suggests, much work remains to be done.
OSACH notes that of all lost-time claims related to vio- lence in Ontario in 2007, 34 per cent were filed by individuals in the health and community care sector.
Ontario is hoping to encourage some positive top-down changes with the appointment of two Healthy Work Environments “champions” who will work to build a culture of workplace safety in health care.
“Leadership commitment is essential to advance a culture of safety, where workplace incidents from all forms of violence — including a personal relationship — are reported, assessed and controlled,” the OSACH statement adds.
Dan Birch is acting assistant editor of OHS CANADA.