On June 19, 2008, amendments to the Canada Occupational Health and Safety Regulations (the “Regulations”) came into force. Developed in close collaboration with employers, unions and the Labour Program, these amendments were adopted pursuant to a provision in the Canada Labour Code, Part II, which requires employers to “take the prescribed steps to prevent and protect against violence in the work place.” They respond to an ever-increasing concern about health and safety in the work place, and the risks to employees related to violence that takes place in the work place. The newly amended Regulations apply to employers who are subject to federal labour jurisdiction, in industries such as banking, interprovincial and international transportation, broadcasting, federal Crown corporations and the federal public service, which account for approximately ten percent of the Canadian workforce.
The amendments, also known as the Violence Prevention in the Work Place Regulations, require federally regulated employers to:
1. Develop and post violence prevention policies setting out the employer’s obligations:
(a) to provide a violence-free work place;
(b) to dedicate sufficient attention, resources and time to address factors that contribute to work place violence and to prevent and protect against it;
(c) to communicate to its employees information about factors contributing to work place violence; and
(d) to assist employees who have been exposed to work place violence;
2. Identify and assess risks related to work place violence;
3. Put preventive controls in place where risks are identified;
4. Provide training for employees on the factors that contribute to work place violence for each work place, the violence prevention measures in place, and the procedures for reporting violence in the work place;
5. Ensure investigations are conducted by competent persons where an incident of violence has occurred;
6. Conduct work place violence prevention measures reviews at least every three years;
7. Develop, implement and post emergency notification procedures to summon assistance where required, in response to work place violence.
DEFINITION OF WORK PLACE VIOLENCE
Violence in the work place for the purposes of the Regulations is defined as “any action, conduct, threat or gesture of a person towards an employee in their work place that can reasonably be expected to cause harm, injury or illness to that employee.”
PROPOSED AMENDMENTS DEALING WITH PSYCHOLOGICAL HARASSMENT UNDER THE CANADA LABOUR CODE
Although the definition of violence in the Regulations does not specifically include psychological harassment, there is an amending private member’s bill known as Bill C-487 – An Act to prevent psychological harassment in the workplace and to amend the Canada Labour Code - that was reintroduced in the House of Commons on November 28, 2007, having originally been introduced in 2003. This proposed amendment defines psychological harassment and abuse of power, requires the federal public administration to provide its employees with employment free of psychological harassment, and requires every employee of the public service of Canada to disclose behaviour that is contrary to these principles. It also provides for the exercise of recourse, the imposition of fines and the taking of remedial action when an employee who has made a disclosure is subjected to retaliation. The Bill is currently at the first reading stage.
WILL “VIOLENCE IN THE WORK PLACE” BE INTERPRETED TO INCLUDE PSYCHOLOGICAL HARASSMENT?
It is uncertain whether the definition of work place violence in the Regulations will be found to include psychological harassment. While the amendments do not specifically address the problem of psychological harassment, they provide that certain types of conduct, which could arguably be construed as psychological harassment, namely “bullying, teasing, and abusive and other aggressive behaviour”, are among the “factors that contribute to work place violence.” It can reasonably be concluded from this that it was not the intention of the regulations’ drafters to consider such conduct to constitute work place violence per se.
However, there has been jurisprudence dealing with the definition of violence where it was held that broad scope should be given to the term, leading to a blurring of the lines between harassment and violence. This could mean that the presence or threat of physical contact would not be required to show the existence of violence in the work place. Such a broad interpretation would be consistent with the provisions in the Code which stipulate that the purpose of Part II is preventative and remedial, requiring the broadest interpretation.
LABOUR AND EMPLOYMENT STANDARDS IN OTHER JURISDICTIONS
The protection of workers from violence and psychological harassment has been a much debated issue across Canada, and a number of jurisdictions have recently made or are considering specific changes to their respective occupational health and safety or employment standards legislation to address it.
Provinces that have passed occupational health and safety legislation or regulations dealing specifically with the prevention of work place violence similar to the recent federal amendments include Saskatchewan and British Columbia. Meanwhile, the province of Quebec passed amendments to its employment standards legislation on December 19, 2002 (in force since June 1, 2004) which provide that all employees have a right to work in an environment free from psychological harassment and which impose an obligation on employers to take reasonable action to prevent psychological harassment and, whenever they become aware of such behaviour, to put a stop to it. In the Quebec legislation, psychological harassment is defined as “any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affects an employee’s dignity or psychological or physical integrity and that results in a harmful work environment for the employee.” It is also specified that “a single serious occurrence of such behaviour that has a lasting harmful effect on an employee may also constitute psychological harassment.”
THE COMPLIANCE AND ENFORCEMENT FRAMEWORK
Internal complaint resolution process
Compliance with health and safety standards begins with the internal complaint resolution process. This is a gradual process of investigation to resolve work place issues surrounding employment safety that involves, from the outset, both the employer and the employees. Through this process, the employer first has an opportunity to address and correct employee concerns without the need to involve the work place committee, the health and safety committee, the health and safety representative or a health and safety officer designated under the Labour Program. If resolution is not achieved at this stage, however, a Labour Program health and safety officer will investigate to ensure that the internal complaint resolution process has been followed and that the safety concerns have been properly addressed. Following the investigation, the officer may:
1. Ask the employer and employee to resolve the matter between themselves, if appropriate;
2. Issue a direction if it is determined that a danger or non-compliance continues to exist; and/or
3. Issue a recommendation that prosecution be initiated for non-compliance.
Offences and punishment
In addition to the risk of Criminal Code (Bill C-45) prosecution in cases of criminal negligence causing death or bodily harm, the Canada Labour Code and its regulations can be enforced through prosecutions which can result in fines and/or imprisonment. Maximum penalties for offences are, on summary conviction, a fine of $1,000,000, and on indictment, imprisonment for up to two years and/or a fine of $1,000,000.