INTRODUCTION

The Occupational Health and Safety Act was recently amended by Bill 168 to deal with Workplace Harassment and Workplace Violence.

DEFINITION OF WORKPLACE HARASSMENT

Workplace harassment is “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.”

DEFINITION OF WORKPLACE VIOLENCE

Workplace violence is:

1. The exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker.
2. An attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker.
3. 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.

Based on this, Gatsby Valet has developed a policy and program with respect to workplace harassment and workplace violence and will take the necessary steps reasonable to protect all employees from all sources. This extends to the virtual workplace. Virtual workplace includes and is not limited to video and phone calls, e-mail communications and messaging platforms, time and attendance platforms, etc.

This program is divided into three sections.

• Section 1: Identifies the duties and definitions that Gatsby Valet must adhere to.
• Section 2: Identifies the program and individual responsibilities for Employees, Supervisors, Managers, and Senior Management.
• Section 3: Identifies the forms and processes to be followed.

SECTION 1: DUTIES AND DEFINITIONS

Under Bill 168, employers must create Workplace Violence and Harassment Policies, develop programs to implement such policies, and engage in assessments to measure the risk of workplace violence.

The Bill requires employers with more than five employees to prepare written policies dealing with Workplace Violence and Harassment. All workers must be trained on these policies, which must be posted in conspicuous places in the workplace and reviewed by the employer annually.

Employers are to assess the risk of Workplace Violence that may arise “as often as is necessary” to ensure the workplace violence policy and program protects workers. Although there is no specification as to the frequency of such reassessments, Gatsby Valet conducts such reassessments after an incident of workplace violence, or annually, whichever occurs first. In

addition to taking into account its own workplace conditions, our assessments must also take into account the conditions of other similar workplaces. Gatsby Valet must advise the Joint Health and Safety Committee of the results of the assessment. If the assessment is in writing, a copy must be provided.

Risk assessments should be conducted by competent individuals who have broad experience and understanding of the workplace. Detailed documentation of the assessment should be maintained.

Under Bill 168, employers are required to develop and maintain a program to implement workplace violence and harassment policies.

The workplace violence program must include measures and procedures to:

• Control the risks identified in the workplace violence assessment.
• Call for immediate assistance when workplace violence occurs or is likely to occur, or when a threat of workplace violence is made.
• Report incidents or threats of workplace violence to the employer or supervisor.
• Establish how the employer investigates and manages incidents, complaints, or threats of workplace violence.

This Workplace Harassment program must include procedures for reporting, investigating, and dealing with incidents of Workplace Harassment.

The requirement to establish and implement such programs is an expansion of the long-standing duty of employers under s. 25 of the OHSA to “develop, maintain, and post” programs to implement Occupational Health and Safety policies.

Employers are required to provide information and instruction on the contents of the policy and program with respect to workplace violence and harassment. The information and instruction must be appropriate and relevant for the individual worker and should be individualized to be most effective. The training should be “in person”. In other words, electronic acknowledgements of a workplace violence and harassment policy will likely not be sufficient.

Bill 168 specifically addresses the issue of domestic violence in the workplace by requiring employers to “take every precaution reasonable in the circumstances” to protect workers from domestic violence that would likely cause physical injury to workers in the workplace. This obligation on the employer arises only if the employer is aware, or ought reasonably to be aware, of the situation.

DEFINITION OF DOMESTIC VIOLENCE

Domestic violence is widely understood to be a pattern of behaviour used by one person to gain power and control over another person with whom he or she has or has had an intimate relationship. This pattern of behaviour may include physical

violence, sexual, emotional, and psychological intimidation, verbal abuse, stalking, and using electronic devices to harass and control. Anyone can be a victim of domestic violence, whatever their age, race, economic status, religion, sexual orientation, or education.

Bill 168 imposes the obligation on employers and supervisors to provide information, including personal information, to a worker about a person with “a history of violent behaviour” if:

• The worker could be expected to encounter that person in the course of his/ her work.
• There is a risk of workplace violence likely to expose the worker to physical injury.

Bill 168 contains no guidance on who would be a person with a “history of violent behaviour” or what types of information should be disclosed. However, it is interesting to note that the person must have a history of “violent” behaviour (and not necessarily “harassing” behaviour) in order for the disclosure obligation to be triggered. In addition, the “violent” behaviour does not necessarily have to be behaviour for which the individual was criminally charged.

Bill 168 clarifies that a worker may refuse to work where he or she has reason to believe that he or she is in danger of being a victim of workplace violence. The normal work refusal process would be triggered (for example, the employer would investigate the refusal, followed by a Ministry of Labour inspector if necessary).

There is no corresponding right to refuse work where “harassment” is believed likely to endanger the Health and safety of a worker. Further, OHSA will continue to prohibit workers in certain public and broader public sector workplaces from refusing work where the unsafe condition is “inherent in the work” or is a “normal condition of employment”.

Employers should:

1. Create written workplace violence and harassment policies. Such policies should:
   
   • be brief and simple;
   • convey that all employees are responsible for maintaining a safe workplace;
   • provide clear definitions and/or examples of prohibited conduct;
   • cover incidents involving co-workers as well as incidents involving outside individuals;
   • send a strong message that workplace violence and harassment is not tolerated;
   • provide a reporting and complaint procedure as well as the steps to be taken to deal with or investigate any complaint.
2. Train employees on such policies.
3. Undertake risk assessments to determine the possibility or prevalence of workplace violence or harassment and keep appropriate documentation of the process. The assessment process should include interviews with a sample of workers, a review of the physical workplace, a comparison of similar workplaces, a review of any previous incidents and the likelihood of interactions with the public, which could lead to danger or confrontation.
4. Disclose incidents of workplace violence and harassment with the joint Health and Safety committee and any risk assessments undertaken;
5. Provide ways for employees to report instances or risks of workplace violence and harassment (for example, in the policy);
6. Discipline employees for not following workplace violence and harassment policies or for committing workplace violence or harassment;
7. Offer a confidential employee assistance program to allow employees subject to workplace violence or harassment, or those with personal problems, to seek

help ensure that proper security measures are in place at the workplace to protect workers from members of the public or customers; and

1. Keep detailed records of any workplace violence or harassment, investigation or work refusal.

TRAINING AND EDUCATION

• All employees are required to be educated and trained on the contents of the Workplace Violence Policy Statement.
• The individual responsible for orienting newly hired employees shall ensure a copy of the Workplace Violence Policy Statement is provided to and reviewed with each new employee during the orientation process that takes place during their on-the-job training.
  
• This policy statement must be posted so that they are available to all employees.

In addition, the training program for employees shall include:

• The potential risk of violence they may be exposed to at work.
• The policy, procedures and work arrangements that are in place to minimize or eliminate workplace violence.
• How to recognize the situation in which there is a potential for violence, how to respond appropriately to an incident of violence, including how to obtain assistance.
• Procedures for reporting incidents of workplace violence.

Anyone who will be responsible to investigate and follow up on reported incidents or complaints of workplace violence shall receive the appropriate instruction.

SECTION 2: RESPONSIBILITIES FOR

EMPLOYEES, SUPERVISORS, MANAGERS, AND SENIOR MANAGEMENT

The first step in the process is to find out as much information about the hazard of workplace violence in the workplace, the community and similar workplaces. One way is to get all employees to be involved in this stage.

The second step is to assess the risks of violence in your workplace at each location. It is recommended that all employees be involved in this stage. Information gathered in step 1 will assist in the identification of any locations where violent incidents have occurred.

The third step is to create a workplace violence policy and program. Any data collected at step 2 will assist in developing a program. Information from various sources, Occupational Health and Safety Policy, Workplace Violence Policy can be combined at this stage providing the information is clearly defined.

Once this information has been gathered, each site will need to be rated in terms of incidents as High Moderate and Low.

Once these have been completed then the policy and any subsequent programs should be monitored to ensure their effectiveness by senior management to ensure that the program is in effect.