Recent amendments to the Canada Labour Code’s occupational health and safety regulations that address the issue of workplace violence came into force on June 18, 2008. British Columbia, Saskatchewan, and Quebec have all passed similar legislation in recent years.
In Ontario, since 2004, no less than four Private Members’ Bills have been proposed that would have amended the Ontario Occupational Health and Safety Act (“OHSA”) to specifically prohibit workplace bullying, harassment, and violence, and require employers to enact comprehensive policies to eliminate such misdeeds in the workplace. None of these Bills has yet been passed by Ontario’s legislature, but support for such legislation could now grow. On September 17, 2008, the Ministry of Labour issued a consultation paper on Workplace Violence Prevention, which stated that:
The McGuinty Government is committed to investing in safe and healthy workplaces. This includes ensuring that the necessary safeguards are in place to protect workers from incidents of violence in the workplace.1
The latest of the Ontario legislative initiatives, Bill 29 Occupational Health and Safety Amendment Act (Harassment and Violence), 2007, passed first reading and remains very much alive. Bill 29 is an NDP Private Member’s Bill that would amend the OHSA to impose significant obligations on employers to prevent and address workplace harassment and violence. It would also empower workers to refuse to work where a threat of harassment or violence exists and even require employers to compensate workers for absences relating to harassment or violence not otherwise covered by the Workplace Safety and Insurance Act, 1997. Bill 29 would also extend the OHSA to include protection from “harassment”. While the Ontario Human Rights Code already prohibits “sexual harassment”, neither it nor the OHSA expressly prohibits “harassment” more broadly defined. Of the jurisdictions that have passed legislation prohibiting workplace violence, specific prohibitions against “psychological harassment” only exist in Quebec, although similar language has also been proposed (though not enacted) federally.
As a Private Member’s Bill, the passage into law of Bill 29 would depend upon the current Liberal government. Even if Bill 29 is not ultimately enacted, given the trend in other jurisdictions, some workplace violence and/or harassment legislation in Ontario is possible. The Ministry’s consultative process on the topic of workplace violence could well lead to the introduction of legislation on this topic supported by the Government of Ontario regardless of the fate of Bill 29.
In the meantime, even in the absence of specific legislation, the Ministry currently considers workplace violence, defined loosely as the attempted, actual or threatened exercise of intentional physical force that may cause physical injury to a worker, to be within the scope of the OHSA. From this perspective, the Ministry expects that employers will have in place appropriate occupational health and safety policies and take all reasonable measures to address workplace violence hazards, and may issue orders or impose penalties where employers fail to do so. The right to refuse to work may also already extend to situations of actual or threatened workplace violence. For this reason, the issue of workplace violence is a matter that should be given consideration by Ontario employers and human resources professionals, even in the absence of new legislation. Employers must ensure that workplace violence hazards are assessed and addressed as part of normal OHSA due diligence. Particular care should be taken by those employers whose workers are exposed to high risks of workplace violence. This may include where:
- Cash is handled or valuables secured in the course of duty;
- Workers come into frequent contact with the public, and/or volatile or unstable people;
- Workers are alone or work late at night or early in the morning.
Workplace violence hazards may be mitigated through effective policies and training, and through effective communication on potential workplace violence hazards. With proper due diligence, employers can meet their obligation to address workplace violence, whether or not current policy is codified into future law.