Imagine a situation where your employee is seriously injured by an outside party … A subcontractor? An employee’s spouse? Their friend? Your supplier?
Many questions might initially pop into your head. How did it happen? What do I do? And given Ontario’s Occupational Health and Safety Act workplace violence provisions (formerly Bill 168), what does this mean for employer liability?
The Occupational Health and Safety Act defines “workplace violence” as:
- The exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker
- An attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker
- A statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker
“Workplace harassment” is defined in the law 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.”
An employer or supervisor is required to take all the necessary steps to limit the chances of workplace violence and harassment from happening!
There haven’t been any cases to flow through the courts yet to help us determine all the prudent steps to take when violence or harassment occur in the workplace. I had the opportunity to attend the mock trial at the Partners in Prevention Convention this past month and I would like to share the hypothetical, yet very realistic, case that was examined. The following is a summary of the events that came to pass.
The employer is Billy Bonka Confectioners Inc., a candy company located in Carmel, Ontario, that offers a wide variety of sweets and chocolate. David is Billy Bonka’s shipper/receiver who is responsible for taking care of the delivery of supplies. Billy Bonka orders supplies from Taste-piraton, which delivers the liquid sugar Billy Bonka needs to produce their sweets. As Billy Bonka’s storage warehouse fills up, the surplus in orders will be delivered to an outside warehouse about 150 feet from the main factory. After a delivery problem with Taste-piration’s tanker trucks, they started storing any excessive amount of liquid sugar to Billy Bonka in this storage facility. As a result, David, shipper/receiver for Billy Bonka, had to make frequent trips from the factory to the outside warehouse to receive Taste-piration’s deliveries. David maintains contact with Taste-piration’s truck driver to schedule the delivery time needed to make the necessary exchanges.
The problem starts when the truck driver begins to deviate from their scheduled delivery times. On the day of the incident, after arriving an hour late to their planned delivery time, David complained to the truck driver about his lack of timeliness. As a result, the truck driver grabbed David, threw several blows to his head and then drove off. David managed to travel back to the factory when his supervisor, Brian Mercer, called 911 for the ambulance and the police.
Let’s take a look at the questions that should be asked.
How did it happen?
Taken directly from the summary; there was an argument between David and the truck driver which led to the physical altercation.
What liability will Billy Bonka have in this scenario?
In the mock trial, the company was charged with three offences including failing to ensure immediate assistance, failing to implement a workplace harassment program and failing to provide information to a worker. The operations manager was charged with two offences.
Is there liability on the part of Billy Bonka or their employee?
The truck driver DID deviate from the arranged delivery time, physically grabbed David and then assaulted him. Many would blame the Taste-piration’s truck driver, but now with violence and harassment prevention provisions in the OHSA, it’s not that easy.
Now, let me reveal some more details about this case
In the court proceedings, we learn that Taste-piration’s driver had been sending emails to David that were of a belligerent and derogatory nature. Also, David had mentioned to the operations manager that he had received emails but the manager did not ask to see them nor did he attempt to deal with them in any way.
Billy Bonka’s operations manager had been advised by Taste-piration that the truck driver had a prior criminal conviction for assault for an attack on another employee at the company holiday party. Both individuals had been drinking at the time. The operations manager, however, did not advise David about these circumstances. Also, the main way for Billy Bonka employees to summon assistance from the storage facility was via their cellphones. As David lifted himself up after the attack, he grabbed his cellphone to call the factory for help, but couldn’t receive a signal.
As we mentioned, three charges were laid on the employer and two on the operations manager. What would you do if you are the human resources manager or the company facing these charges with potential monetary penalties and potential jail time?
We will provide the verdict and details of the proceedings of the case in a future blog post, but for now, do you think this company and their operations manager are liable?
Anna Aceto-Guerin
Clear Path Employer Services
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Well, I think as you demonstrated in revealing more information about the case, there is always more to a story once we start to uncover the facts.
If the company knew about abusive emails and did nothing about it, even though the employee wanted something done (as I would suggest was the case since he brought them to the employer) then, yes; they need to be held responsible for that.
The record for assault? Not so clear. We have privacy laws and I am not so sure that Billy Bonka would be at liberty to discuss that with David. Having said that, if Billy Bonka believed the information about the assault record to be reliable, then yes, they should probably have taken the emails more seriously and prepared David with emergency protocols.
While it may seem unreasonable on its surface, there were definitely measures that could have been put into place to avoid or at least mitigate this situation. Whether an employer agrees or disagrees with the OHS legislation, it is unfortunately a reality of having a business today. The only way the message will be taken seriously for employers, is if situations like this one come to light.