A recent labour arbitrator’s decision—to uphold the City of Kingston’s right to terminate a 28-year employee for issuing a verbal threat against a co-worker—was based in large part on the arbitrator’s view that “the classification of threatening language as workplace violence” under the Occupational Health and Safety Act represents a “clear and significant change” to the law in Ontario.

In a detailed 68-page decision, which represents some of the very first quasi-judicial interpretation of the Bill 168 amendments to the OHSA, and which should be of interest to employers all across the province, the arbitrator found that the amendments change the way in which employers must now respond to verbal threats. In short, because the uttering of a threat of violence now legally constitutes an act of violence, employers can no longer dismiss such behaviour as mere talk.

Case overview

A labour arbitrator found that a public sector employee had made a death threat against a union representative in the workplace. After a lengthy investigation, the employer terminated the employee, in part because of the employer’s obligation under the OHSA to take all reasonable steps to maintain a safe workplace.

The employer’s position was that the Bill 168 amendments signalled that threats of violence are simply unacceptable.

The union argued that Bill 168 is a new piece of legislation that should not alter the need for the employer to adopt a proportional response to employee misconduct.

The arbitrator began her reasons by stating, “The Bill 168 amendments to the Occupational Health and Safety Act have changed the law of the workplace in a significant way. … an employer must protect a worker from a hazardous person in the workplace.”

The arbitrator went on to identify four significant ways in which the Bill 168 amendments have altered the legal landscape in Ontario.

1. Use of inappropriate language in the workplace

The amendments clarify the way in which workplace parties, adjudicators, arbitrators and judges must think about incidents involving the inappropriate use of language in the workplace. “The Amendments make it clear that language that is vexatious and unwelcome is harassment, and very serious in its own right. But language that is made in direct reference to the end of a person’s life or that suggests impending danger, falls into a category of its own. This is not just language, it is violence.”

Further, “Where an alleged threat is reported, the incident falls into a new category. The parties must address the allegation as one of violent misconduct. It must be addressed as a very serious allegation.” It is the utterance of the words that constitutes workplace violence. “There need not be evidence of an immediate ability to do physical harm. There need not be evidence of intent to do harm. No employee is required, as the receiver of the words, to live or work in fear of attack.”

2. Employer and worker responsibilities

Bill 168 changed the way that both employers and workers must react to an allegation of a threat of violence. Employers cannot trivialize threats in the workplace and must take steps to ensure such actions are reported, investigated and addressed. As the arbitrator observed, ”A worker who becomes aware of a danger is required to report the incident. … The utterance of a threat in the workplace requires that the workplace parties stop cold. They must report. They must investigate. They must assess the existence of real danger.”

The employer must act wisely, objectively and fairly. To avoid overreacting to workplace threats, the employer ”must investigate allegations of workplace violence with a full and fair approach, assessing objectively verifiable fact, and ensuring that decision-making in responding to the incident is informed, reasonable and proportionate.”

Employers must not assume that the sum of arbitral jurisprudence is less relevant under the amended law. The Bill 168 amendments do not “make terminations automatic or necessary if the misconduct amounts to workplace violence.”

In the present case, the arbitrator found that the employer had investigated the allegations with care and attention and had assessed a range of factors in determining whether termination was the appropriate course of action.

3. Seriousness of workplace threats

In assessing the reasonableness of termination as a course of action following a workplace threat, the arbitrator identified the need to place additional weight on the seriousness of the incident in the wake of Bill 168. By statutory definition, threats now fall under the category of workplace violence. Arbitrators must weigh this fact carefully against other factors.

4. Workplace safety

In considering the reasonability and proportionality of discipline when a threat is reported, employers must ask, “To what extent is it likely that this employee, if returned to the workplace, can be relied upon to conduct himself or herself in a way that is safe for others?”. The arbitrator stated, “The employment relationship will be incapable of reparation, if the offending employee is likely to render the employer incapable of fulfilling its obligation to provide a safe workplace under the Occupational Health and Safety Act.”

The arbitrator made it clear that the grievor was “entitled to thoughtful consideration, particularly in light of her very long years of service, of whether any other form of discipline will serve the goals of imposing appropriate and proportionate discipline, while ensuring a safe workplace.”

The arbitrator concluded that the grievor had not intended to actually end the life of the person she threatened. Rather, the arbitrator viewed the actions of the grievor as venting her frustration and anger toward the other workplace party. Nonetheless, “the threat did cause actual harm.” The subject was “provoked to extreme anger”, “shaken”, “upset”, “nervous” and “fearful”. “The emotional impact of a death threat is considerable, and constitutes actual harm upon its victim.”

Conclusion

This landmark decision holds a number of important lessons for Ontario employers, including:

• The utterance of a threat of violence—for the purpose of intimidation—constitutes an act of violence
• This is true regardless of whether or not:
  • The person issuing the threat has any intention to follow through
  • The person issuing the threat has any ability to follow through
  • The person receiving the threat feels afraid
• A worker who hears another worker issuing a threat must report the incident
• Employers cannot ignore, dismiss or trivialize reported threats and incidents
• Reported incidents must be thoroughly investigated and addressed
• When considering how to discipline an employee for uttering a threat, an employer must:
  • Place extra weight on the seriousness of this sort of misconduct
  • Assess the likelihood that the misconduct could or would be repeated if the worker remained in the workplace
  • Act in a manner which gives due consideration to the safety of other workers
• In some cases, termination of the employee will be a reasonable and measured response

The Bill 168 amendments have been law in Ontario for over a year now, and we are just beginning to find out how the provisions under this new set of rules are going to be applied. Employers need to keep abreast of these legal developments as they unfold.

The case at hand was adjudicated in the context of the Ontario Labour Relations Act. The arbitrator’s findings are not binding upon judges deciding cases brought under the Occupational Health and Safety Act. However, the case represents an important milestone in that it is the first, in-depth judicial or quasi-judicial review of the Bill 168 amendments. It would seem both likely and plausible that the arbitrator’s findings in this case foreshadow what lies ahead as more Bill 168 cases are decided.

The arbitrator’s statutory interpretation of Bill 168 in this case should serve as a rallying call to Ontario employers. Despite the cogent rationale for developing a comprehensive workplace violence prevention program, a number of employers have not taken the necessary steps. Workplace violence initiatives are all-too-commonly seen as a distraction from “business as usual” and the associated financial and human resource costs of planning are often questioned.

A growing body of research suggests that organizations that are not prepared to address the risk of workplace violence face severe legal, reputational and operational liabilities. The business case for making workplace violence prevention a priority is at hand, and the call to action has gone out to HR professionals, legal officers, security and safety managers, corporate executives and boards of directors. Is your organization answering the call?

David Hyde and Brian Robertson
David Hyde and Associates

© 2011 First Reference Inc. All Rights Reserved. | Permalink | 2 comments |

Image: Author Samuel Langhorne Clemens, better known under his pen name, Mark Twain. Read more: www.cbc.ca

A Toronto Star article published about a month ago caught my eye— “New edition removes racial slur from Mark Twain’s books“. I eagerly read the article because it sure sounded like it may be about political correctness. Sure enough, it was! They are planning to replace the word nigger with the word slave.

Yosie noticed the article too and blogged about it from her perspective. I, like Yosie, am offended that this publisher wants to alter an important era in history by removing a word that was commonly used in everyday language during the period.

I was recently taken to task by a workshop participant because I used the reference “N-word” during a training session. He asked, “Why do we try to camouflage that word?”

I didn’t have a really good answer. The question caused me to stop and reflect on my attitudes and how I may influence others by conveying those attitudes while delivering training. “I don’t want to offend anyone” was one possible answer. “I want you to invite me back” —I am self-employed after all.

This reflection reminded me of another workshop where I used the word “faggot” while trying to make a point about the use of offensive words. A participant of that workshop complained to me that I could have made my point without using the offensive word.

Yet another memory I have is the time when someone asked me, “What exactly IS the ‘N’ word.” She really didn’t know what I was talking about.

So, you never know. You never know just what will offend a person or on the other hand when an attempt at political correctness will in fact be offensive to a person.

From all of this I have learned that an ongoing and open dialogue on the topic of human rights and political correctness is needed in the workplace.

I have learned that “camouflaging” words like nigger and faggot is just as offensive to some people as the use of the words themselves. It is wrong when these, and similar, words are used to deliberately attack or belittle an individual or identified group; it is not wrong to talk about these words.

Remember that if we don’t remember history we are destined to repeat it.

P.S. I am reading a mystery novel by Jeffrey Deaver. The author uses the word “crip” in reference to persons with disabilities. You never know.

Andrew Lawson
Learn don’t Litigate
www.learndl.ca
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“The new legislation protects us from harassment, bullying. The Ministry will investigate and there is now zero tolerance for it.”

Taking a respite from the heat wave that affected most of Central Canada last week, I dropped into a Tim Hortons for some cool refreshment. Seated near me was a group of workers who were dressed in similar uniforms. I think they were all cleaning staff from a nearby business. One of the group seemed to be a leader of sorts and was offering the above advice and information.

The leader was explaining to the group of workers that new legislation has been enacted in Ontario that will protect all of them if they are being harassed at work. As a human rights advisor and educator I was encouraged to overhear this educational conversation. I get excited when I hear people talking about how the law applies to their situation!

I was concerned however that part of the message this group was hearing was incorrect and misleading. Their leader was telling them that the “ministry” would investigate their complaints of harassment. This information was warmly received by the group, and I could almost see the complaint forms being filled out!!

The misinformation being distributed during this “staff meeting” reinforced for me the importance of providing competent staff training conducted by a knowledgeable, experienced professional.

The information these workers was being given was just plain wrong.

A quick search of the Ministry of Labour website reveals the following statement:

“It is not the role of ministry inspectors to resolve or mediate specific allegations of harassment in the workplace.”

The Ministry of Labour will investigate to ensure employers have policies and procedures in place for dealing with complaints of harassment and violence.

The ministry will investigate to ensure you have completed a violence risk assessment specific to your workplace.

The ministry will investigate to ensure you are communicating with your employees on these issues.

The ministry will not, as stated on its website, resolve specific complaints of harassment in the workplace.

Investigating specific complaints is the responsibility of the employer.

So, the group leader was partially correct. Legally, there is now less tolerance for harassment in the workplace in Ontario. Employers are responsible for creating a complaints process and educating employees on how a complaint will be handled.

The Ministry of Labour is responsible for ensuring employers have these systems in place; not for investigating complaints. The ministry furthermore has the legal authority to issue orders to comply where an employer is in contravention of the law and to prosecute an employer, supervisor or worker for failing to comply with an inspector’s order.

Learn—don’t Litigate. Obtain professional, knowledgeable assistance and train your staff today. Don’t wait for them to pick it up at Tim Hortons!

Andrew Lawson
Human Rights Advisor, Learn Don’t Litigate
www.learndl.ca

© 2010 First Reference Inc. All Rights Reserved. | Permalink | 6 comments |

Your city, and others around the world, has recently published reports of preparations to celebrate Gay Pride. A small group of your staff is gathered around a newspaper article discussing Pride preparations, and you overhear the following lunchroom conversation:

“What do those faggots have to be proud about? They should be ashamed of themselves.”

The June 15th deadline that we have all been talking about, and many have worried about, has arrived—in fact, come and gone—and we are still here! Survivors!

June 15th, of course, is the date when amendments to the Occupational Health and Safety Act came into force requiring all Ontario employers to address the issues of workplace harassment and violence in concrete and visible ways (other Canadian jurisdictions have similar laws).

You have a legal obligation to understand how the race, religion and sexual orientation of your employees can impact their safety at work. Understanding these factors will empower you to take steps to protect your workers from harassment and violence as required by the new law.

One of the concrete methodologies created by the new law is the violence risk assessment. Statistics Canada data can assist you in understanding how your employees may be at risk for violence because of who they are.

Jewish people and black people are the most frequent victims of hate crimes based on their race and/or ethnicity according to a National Post report of Statistics Canada data released recently. The same article quotes Bernie Farber, CEO of the Canadian Jewish Congress, as saying,

“When there is a situation that has developed in the Middle East, dealing with the Jewish state of Israel, it is a truism to say hate crimes against Jews rise.”

Furthermore, sexual orientation motivated twice as many violent attacks in 2008 compared to the previous year. And Vancouver is the “gay-bashing capital of Canada”.

Recent amendments to health and safety legislation throughout Canada together with your due diligence obligations require employers to be aware of the type of information reviewed in this article. Be aware that your enhanced responsibilities with respect to workplace harassment and violence have just begun… regardless of your state of compliance with the new law.

Learn—don’t Litigate. Ensure that your knowledge is current. Invest in workplace training for yourself, your managers and your front-line staff.

Read more about Ontario’s amended Occupational Health and Safety Act on First Reference Talks.

Andrew Lawson
Human Rights Advisor, Learn Don’t Litigate
www.learndl.ca

© 2010 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

Image taken from: schooltipline.wordpress.com

In my previous post on “hazing” and “horseplay” in the workplace, I referred to a recent incident where photos and videos revealed some very questionable events involving employees at the transportation and works department of their municipal employer. Since the acts were potentially criminal, the police became involved and started an investigation.

Though there were rumours that the investigation had ended, and no charges would be laid, and the employer made statements to that effect, it is clear that the investigation is not over.

In fact, a decision may be a week or two away. “It’s still under investigation”, said the official spokesperson for the police. “It’s too early to make a determination on the outcome of the investigation”.

One of the city councillors excused herself from an in-camera session with the police chief once she learned that the police investigation was ongoing. She felt that it would be inappropriate, and a conflict of interest for a city councillor, an employer representative, to stay at the meeting while the police investigation was still in progress.

Though some have said that the employees consented to the horseplay and hazing, one may wonder if that was really the case. Interestingly, the city councillor who excused herself from the meeting compared the situation to a child being bullied at school. Initially, the victim tells no one about the bullying in order to be a good sport and not appear like a wimp.

With the case of the employees, grown men, being duct-taped and spanked at work, perhaps these employees were victims who felt they had to “grin and bear it” to keep their jobs.

Does that really constitute “consent” in criminal law? I’m wondering: do you think that the employees consented to this appalling behaviour in the workplace?

At this point, two supervisors have been suspended without pay for an unknown period of time. They were not terminated because the employer’s investigator concluded that the employees participated in the hazing rituals willingly.

Time will tell as to whether the police will concur with the employer’s decision in this hazing and horseplay case.

What I find weird is that we haven’t heard from the Ministry of Labour, Occupational Health and Safety Division, since this is a clear case of workplace violence and harassment—even though the Ontario Occupational Health and Safety Act provisions that obligate employers to protect employees from violence and harassment in the workplace only come into force June 15, 2010. Moreover, the employer has a general duty to provide a safe and healthy environment, but there’s no indication that the Occupational Health and Safety Division inspected the workplace for any violations to the Act and Regulations, or reviewed the employer’s investigation report to ensure that measures have been put in place to prevent this situation from ever happening again.

But this story is not over yet—I think!?

Christina Catenacci
First Reference Human Resources and Compliance Editor

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Image taken from: http://www.thestar.com

In one clip, employees were bound face-to-face with duct tape on top of a large table in a workshop, while other employees threw water balloons at them. In another recording, an employee was bound with duct tape, put on the back of a truck and sent through a car wash. One clip even showed an employee, on his birthday, who was told to lean over a table, and other workers were instructed in turn to hit him, and to “hit hard and to kick or punch in the face, ribs or groin area”. If the blow didn’t appear hard enough, they were told to hit harder.

After viewing the video, the police became involved and started investigating the allegations. Peel police stated, “if you take the video alone and look at it, you would think that’s more than inappropriate. The potential there is, there’s a criminal act going on.”

Employees have claimed that the hazing had been going on for about five years. However, the employer has stated that it first learned about situations where employees in the transportation and works department were tied up with duct tape, spanked until they were bruised, and humiliated at the behest of one of their supervisors in November 2009. It was only then that the employer commenced its own investigation into the matter.

The employer’s investigation concluded the behaviour was in the nature of horseplay or locker room antics. According to the report, the employees viewed the conduct as “appreciated, good-natured, and voluntary”.

Yet the employer has been quoted in a news release as saying, “We want to stress how seriously we took the allegations and that in no way do we condone this type of behaviour”.

At this point in time, only one supervisor has been disciplined.

Furthermore, the Ontario Ministry of Labour got involved after receiving a call from one of the employees, and began investigating immediately. The inspector stated, “By the time we got there, the city had done their job and taken care of everything. They were in compliance and there were no orders issued.”

The questions I had after reading this story were:

• Was the behaviour really “appreciated, good-natured and voluntary”?
• Did the employer act quickly enough to commence an investigation?
• Has the employer done enough via discipline to make sure all individuals in the workplace understand this should not happen again?
• Has the employer done its job of creating anti-violence and anti-harassment policies and training its employees and supervisors about them?

One employee answered my first question with a plain “no”, and characterized the conduct as assault and harassment. He stated, “I can assure you it’s more than horseplay. It’s oppression. We live under fear”. He noted that employees were afraid of reporting the abuse for fear of losing their jobs.

With the new violence and harassment legislation coming into force in Ontario on June 15, 2010, employers should ensure they are ready for the changes. The conduct mentioned above could indeed be classified as workplace violence and harassment. Employers are recommended to conduct workplace assessments, create anti-violence and anti-harassment policies and procedures, and train all individuals in the workplace about workplace violence and harassment. There should also be established complaint procedures, investigation procedures and disciplinary consequences set out and consistently enforced.

I’m wondering: has your company encountered a situation that might have crossed the line, where the employer should have conducted an investigation, or put a stop to a potentially abusive situation? Ask yourself, are you really ready for the new workplace violence and harassment legislation? This case is a great example of violations of violence and harassment prevention under Occupational Health and Safety, as well as Human Rights legislation.

Christina Catenacci
First Reference Human Resources and Compliance Editor

© 2010 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

Image taken from: http://aftermathnews.wordpress.com

My colleagues and I recently made fun of the possible employment law issues that could come out of the implementation of full-body scanners as a form of screening device for airport security. But I never expected this, and so soon.

The Miami Herald recently reported that an airport security employee was arrested for beating up a co-worker for making fun of the size of his “privates” during testing of controversial full-body image scanners.

This is a great case of how harassment was ignored repeatedly over a year and built up to become a violent incident.

Rolando Negrin can be portrayed as a victim as well as the precursor of a violent act.

According to the newspaper, Negrin had been the butt of his colleagues’ jokes for a year after the security scanners—which are used to detect foreign objects hidden under a person’s clothes, but in the process show a person’s private parts—revealed he had a small penis.

The frustrated screener told police:

“Co-workers made fun of him on a daily basis and … he could not take the jokes any more and lost his mind”.

Moreover, the day of the alleged attack, Negrin waited in the parking lot for the colleague in question to talk about the issue of respect. The colleague refused to hear him so Negrin took out what they say to be a police baton (from where, I do not know), threatened to kill his colleague if he did not apologize, and started hitting the person on his arms and back until the victim kneeled and said sorry.

The victim suffered “bruises and abrasions on his back and arms” during the attack and pressed charges.

The Smoking Gun website has a copy of the police report online.

The employer, the Transportation Security Administration (TSA), said:

“TSA has a zero tolerance policy for workplace violence. Per our normal procedures, the officer charged is being suspended pending further investigation into this matter. We are investigating to determine whether training procedures were violated and will take appropriate action as necessary. The actions of a few individuals in no way reflect on the outstanding job our more than 49,000 security officers do every day to ensure the safety of the traveling public.”

I think, in this case, more than training procedures were violated. The violence prevention program and policy was also. And the lack of a harassment program and policy did not help.

The thing employers and employees need to understand is that violence does not always rear its ugly head instantaneously. Acts of harassment have a tendency to lead to violence if not dealt with effectively by the employer, as well as by the employees.

Harassment is unwelcome, unwanted and uninvited; it may be expressed verbally or physically; it is usually coercive, and it can occur as a single incident or on a repeated basis. It comprises actions, attitudes, language or gestures, which the harasser knows, or reasonably ought to know, are abusive, unwelcome or wrong.

Unwelcome remarks, jokes, innuendo, taunts or other discriminatory communication, and insulting or malicious gestures or practical jokes which cause someone embarrassment or discomfort, are all forms of harassment. Unchecked, these actions can lead to violence when a victim of harassment can’t bear it any longer.

In this case, the victim became the perpetrator of violence, which is any physical assault or threat of physical assault. The employee tried to right a wrong with another wrong.

If the employer had a harassment program and policy in conjunction with its violence program and policy, outlining expectations, standards, guidelines, training and support, it would have given the employee another outlet to turn to before the situation got out of control and escalated to violence. If the employer had dealt with the workplace harassment the employee was subjected to, it may have prevented the violent incident that ensued.

Employers need to develop a written policy dealing with harassment, indicating that harassment is against the law, violates company policy and can breed incidents of workplace violence when not complied to.

Employers need to develop a harassment prevention program that includes an effective complaint procedure for workers subjected to harassment. Provide a mechanism for employees to bypass their supervisor when the supervisor participates in the harassment or fails to take proper action. The complaint procedure should encourage a prompt solution to the problem.

Employers, especially supervisors and managers, need to promptly and effectively respond to harassment complaints, particularly if the harassment is witnessed by others or is commonplace, even if the employee has not complained.

Employers should undertake a complete and confidential investigation of any allegations or evidence of harassment, and impose appropriate disciplinary action.

Employers should also prevent harassment before it occurs. Circulate or post the company anti-harassment policy as well as human rights and occupational health and safety rules on harassment and violence.

Further, it’s crucial to express strong disapproval of such conduct, and tell employees of their right to be free from harassment.

Yosie Saint-Cyr
Human Resources and Compliance Managing Editor

© 2010 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

Those hazards are also called risks. Risk is the likelihood that a harmful consequence (death, injury or illness) will result when exposed to the hazard.

Employers then have an obligation to eliminate employee exposure to the hazards. If this is not reasonably practicable, employers must control the risks by implementing measures to limit the risk of harm to the lowest possible level. The purpose is to prevent employee accidents and injuries arising out of, linked with, or occurring in the course of their employment.

Effective June 15, 2010, in Ontario, employers will have to add violence and harassment to the list of risks they must learn to assess and prevent. It is not only Ontario employers who need to be concerned about preventing and managing violence and harassment in the workplace. Occupational health and safety laws in several jurisdictions, including British Columbia, Alberta, Saskatchewan, Manitoba, Nova Scotia, Prince Edward Island, Newfoundland and Labrador and in the federally regulated jurisdiction directly address the problem of workplace violence as a health and safety hazard (Manitoba and Saskatchewan include harassment as a risk similar to Ontario). In jurisdictions where no distinct legal duty to prevent workplace violence and harassment is set out in occupational health and safety statutes, the duty falls under the general duty clause, which requires the employer to take every precaution reasonable in the circumstances for the protection of a worker.

The distinction to make between assessing the risk of violence and harassment is that the risk of violence requires a proactive assessment while the risk of harassment requires a reactive one. Employers are also not required to perform a proactive risk assessment regarding domestic violence. The risk assessment is reactive, meaning, if a worker or co-worker reports a case of harassment, or the possibility of domestic violence, or if there are visible signs, then a risk assessment should be triggered to ensure that controls are in place to stop the harassing behaviour and the harm that might ensue, or prevent domestic violence from entering the workplace.

Effective risk management involves identifying all hazards in the workplace, and then carrying out a risk assessment for each hazard, to assess the severity of a risk, before deciding its priority and how to deal with it.

Due to the amount of existing and foreseeable risks that can be found in a place of work, and employers’ obligation under the law to identify and control them, your risk assessment must become a risk management process.

In general, the risk management process required is divided into five steps. These steps can be applied to assess any risk, including the risk of violence in the workplace:

1. Identify hazards, based on experience, recorded data and other information.
2. Evaluate the level of risk to workers’ health and safety, based on the consequences and likelihood of harm.
3. Select control measures from the hierarchy of control (e.g., eliminate, substitute, isolate or engineer out the risks, or reduce them through administrative measures or personal protective equipment) by selecting the highest order control method possible and then proceeding down the list in order.
4. Implement or apply the selected control measure(s) in the workplace. Make sure that every step is documented.
5. Monitor the control measures to ensure that they are working correctly to control the risks and that no other risks have been introduced.

Further, risk management is an ongoing process that should be undertaken:

• Now, if it has not been done before
• When any new work, equipment or material is planned
• When planning or making a significant change
• After a complaint or an incident
• At regular intervals appropriate to the nature of the workplace and the hazards present
• When legislative obligations (including regulations) require it or change

Following the assessment, employers must prepare a report with the results of their assessment and a plan to address potential areas of concern. Employers must also advise the committee or a health and safety representative, if any, of the results of the assessment, and provide a copy if the assessment is in writing. If there is no committee or health and safety representative, the employer must advise the workers of the results of the assessment and, if the assessment is in writing, provide copies on request or advise workers how to obtain copies.

The results of the risk assessment allow employers to implement their specific-hazard prevention plan and measures to control, eliminate or minimize a specific risk in the workplace.

This involves the development of strategies that eliminate or reduce the risk. There is no one perfect prevention strategy. Employers vary in size, the types of workers employed, corporate culture and resources, and so on. Thus, the risk assessment, prevention plan, controls and measures taken will vary and be specific to a workplace.

The employer must reassess the existing and foreseeable hazards as often as is necessary to ensure that the related policy and program continue to protect workers from specific risks.

What challenges are you encountering when trying to implement your risk assessment process to ensure you are complying with OHS law?

Yosie Saint-Cyr
Human Resources and Compliance Managing Editor

© 2010 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

The process for implementing these new rules is time consuming and very complex. You may have to consult with lawyers, experts or some other health and safety professional or association. In short: waiting until the last minute is not a very good idea.

Here are some of the steps employers need to consider and start working on now:

• As with most other risks, prevention of workplace violence and harassment begins with planning. Form a team of key employees to develop, review and implement a violence prevention plan and policies dealing with violence and harassment, preventive measures, measures to report, investigate and respond to incidents, support employees, and security measures, among others. This same team should also be available to deal with incidents that may arise in the future.
• Risk assessment: assess the potential for workplace violence and harassment in your work environment. Identifying problem situations and risk factors—circumstances that may heighten the risk of violence—can involve a particular event or employee, or the workplace as a whole.
• As appropriate, develop and execute a plan to address the various issues that result from the risk assessment process. Don’t hesitate or find excuses not to make the necessary changes to control or prevent violent or harassing incidents.
• Re-evaluate, rethink and revise policies and practices. Draft or review existing policies and procedures to ensure that they effectively address workplace violence and harassment as required by law. Here an employer sets the standard for acceptable workplace behaviour and preventive measures. For example, you could review your recruiting and hiring practices by including preventive measures such as pre-employment screening. Identifying and screening out potentially violent people before hiring is a means of preventing workplace violence. Pre-employment screening practices must, however, be consistent with privacy protections and anti-discrimination rules under human rights law.
• Awareness and training: one of the most critical components of an employer’s prevention program is training for employees and supervisors. This includes special training for employees who would be involved in responding to an incident of workplace violence or harassment. All employees should know how to recognize and report violent or harassing incidents, intimidating, threatening and disruptive behaviour, as well as ways of preventing or defusing volatile situations or aggressive behaviour. It is important that supervisory training include basic leadership skills such as setting clear standards, addressing employee problems promptly, and using the probationary period, performance counselling, discipline and other management tools consistently and conscientiously.

Employers must clearly communicate and instruct their employees on the law and their violence prevention plan and policies on or before June 15, 2010.

These are only a few of the things you need to think about and prepare. You have a lot of work ahead of you to ensure that you are compliant with the law at the appropriate time. Employers who fail to do so will find themselves in non-compliance with the Act and may face orders, as well as significant fines and penalties.

Have you started to look at these steps? And if you have, which one are you having most trouble with?

Yosie Saint-Cyr
Human Resources and Compliance Managing Editor

© 2010 First Reference Inc. All Rights Reserved. | Permalink | 3 comments |