It has now been over a year since Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) came into force. So far, there have not been any reported prosecutions dealing with workplace violence or harassment. However, Ministry statistics make it clear that the new law is being taken seriously. In the period between June 15, 2010 and March 31, 2011, Ministry of Labour Inspectors investigated more than 400 complaints involving workplace violence and more than 1000 complaints involving workplace harassment.1 In addition, 600 orders associated with workplace violence and 1100 orders associated with workplace harassment have been issued.2 Workplace violence and harassment are clearly on the Ministry’s radar screen.
As a refresher, as of June 15, 2010, most employers in Ontario were required to: (i) undertake a workplace violence risk assessment; (ii) prepare internal programs and policies aimed at identifying and controlling risks for workplace violence and workplace harassment; (iii) create procedures for summoning immediate assistance when workplace violence is imminent or occurring; (iv) create procedures for reporting and investigating complaints of workplace violence or harassment; and (v) provide information and instruction to all staff on the internal programs and policies put in place.
Employers who have not yet complied with the legislation can still do so, and there are now many on-line resources, publications and other helpful documentation to assist. For those who have met the initial requirements, it is important to remember that the legislation also requires employers to review their policies and procedures at least annually and to review and update their assessment of the risks of workplace violence as often as is necessary to ensure that workers are protected.
While there have been no reported Ministry of Labour prosecutions dealing with workplace violence or harassment, some adjudicators have commented on the impact of the legislation in a discipline and discharge context. For example, in H.J. Heinz Co. of Canada Ltd. and UFCW, Local 459 (Pursel) (Re),3 a discipline case involving a physical fight between two co-workers, Arbitrator Marcotte commented as follows:
I also note that the enactment of Bill 168 reflects societal concerns about violence in the workplace and in some respects, in counsel’s words, it is a “codification of common sense,” such that its occurrence in the workplace is a serious matter that attracts serious discipline. By way of engaging in workplace violence on June 11, 2010, it is appropriate that the discipline be greater than had been imposed by the Company prior to Bill 168.4
Other arbitrators, in similar cases, have emphasized that while violent conduct in the workplace may be grounds for summary dismissal in appropriate cases, the passage of Bill 168 and an employer’s policies aimed at eradicating violence in the workplace, do not automatically lead to discharge as the appropriate penalty. Rather, arbitrators are still called upon to weigh all the factors and properly assess the circumstances to ensure a proportionate disciplinary response. Accordingly, in many recent cases, while the employer’s decision to terminate an employee for engaging in violence in the workplace have been overturned, arbitrators have upheld lengthy unpaid suspensions in the magnitude of 6 months or more.5
It is clear therefore that workplace violence and harassment and an employer’s attempts to rid the workplace of such conduct have become a matter of public policy and consciousness.