Employee fights and threats

Question: If an employee threatens another employee with physical violence or takes a swing at him, should it remain an internal matter? At what point is it beyond the employer’s jurisdiction and police should be called?

Answer: There is no hard and fast jurisdictional rule that establishes when the police should be called in relation to an actual or potential assault committed at the workplace. Obviously, the circumstances surrounding the particular incident will be important in deciding if the incident warrants police involvement. Such factors as the seriousness of the incident, the nature of the workplace, any history of conflict between the employees and whether the incident involved an actual assault or a threat not taken seriously by either party will be relevant to that decision.

That said, every incident of violence or threatened violence in the workplace must be taken seriously by employers. While employers have always been under a duty to insure the safety of their employees, recent changes to provincial and federal occupational health and safety legislation have given that duty a more precise form. The need for such legislation has been graphically illustrated in a number of notorious incidents and in a 2004 Statistics Canada survey that found that 17 per cent of all self-reported violent incidents occurred at the victim’s workplace. The new legislation typically requires employers to address the issue of workplace violence in very specific ways.

The Ontario Occupational Health and Safety Act was amended by the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace), 2009, which came into force on June 15, 2010.

In these provisions, “workplace violence” is defined as a person’s exercise, attempt to exercise or threatened exercise of physical force against a worker, in a workplace, that causes or could cause physical injury to the worker. Harassment involves engaging in a course of vexatious comment or conduct against a worker in a workplace where the comment or conduct is known or ought reasonably to be known to be unwelcome.

The Ontario provisions impose numerous defined obligations on employers, including: obligations to develop, communicate and review written policies covering violence and harassment in the workplace; to assess the risks of violence in various contexts, including in the hiring process; to provide notice, information and education about those risks; and to take reasonable precautions to protect workers likely to be exposed to domestic violence. Employers are required to establish programs to implement policies which, among other things, must include measures and procedures for summoning immediate assistance when workplace violence occurs or is likely to occur.

In Alberta, the issue is dealt with under the Occupational Health and Safety Code 2009, where “violence, whether at a work site or work related, means the threatened, attempted or actual conduct of a person that causes or is likely to cause physical injury.” Section 1, Part 27 of the code identifies workplace violence as a “hazard” and prescribes the specific steps to be taken by an employer in assessing and dealing with that hazard, including: the development and communication of written policies and procedures; the development of appropriate responses and procedures for reporting, investigating and documenting incidents of workplace violence; and instruction of workers in recognizing workplace violence.

Employers under federal jurisdiction are covered by the Canada Labour Code, Part II Occupational Health and Safety and the specific obligation in s. 125(1)(z.16) of the code to “take the prescribed steps to prevent and protect against violence in the work place.” The Canada Occupational Health and Safety Regulations, Part XX (Violence Prevention in the Workplace) define “work place violence” 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.”

Section 20.8 of the regulations requires an employer to develop written emergency notification procedures to summon immediate assistance and states that “the employer’s decision of whether or not to notify the police shall take into account the nature of the work place violence and the concerns of employees who experienced the work place violence.”

As the applicable legislation varies from jurisdiction to jurisdiction, it is important to look to its specific terms in any particular jurisdiction to determine the precise content. However, generally speaking, the legislation recognizes the ability and the responsibility of the employer to control many of the factors that foster or facilitate the commission of violent acts. It taps into this reality by requiring the employer to exercise its control to insure, as much as is reasonably possible, that violence is prevented before it occurs.

Regardless of the specific statutory duty imposed under occupational health and safety legislation, employers cannot afford to ignore their responsibility to take precautions to protect their employees. A failure to take action can have serious human consequences and can subject an employer to significant costs (including the costs of employee absences, increased insurance costs and workers’ compensation assessments) and civil and criminal liability.

Whether or not it is mandatory under the legislation in force, employers should:

•Establish, publish and enforce clear policies that prohibit aggressive behavior in whatever form it may take, including physical and psychological violence.
•Routinely assess the potential risk of violence through such factors as: working with cash or other valuables; working directly with the public or with clients, particularly those who may be volatile or unstable; working in high-crime areas; and working alone.
•Take action to warn employees of any identified risks.
•Encourage the reporting of incidents and conduct thorough investigations.
•Act quickly and consistently to deal with offenders.
•Address workplace conditions that allow violence to occur (such as physical isolation, inadequate
supervision, inadequate security precautions and a workplace culture of disrespect for others).
•Provide training in violence prevention.
•Have conflict resolution systems in place.
•Provide support and counselling to employees who are victims of violence or harassment.
•Generally ensure that management/labour relations are conducted with respect and sensitivity, keeping in mind the notion that work is one of the most important facets of an individual’s identity.

In broad terms, an employer should make it clear to employees and management alike that physical altercations, threats, intimidation and harassment will not be tolerated in the workplace and any incidents will be dealt with severely.

If the violence or threat of violence is real, police involvement should be sought. Failure to deal with criminal conduct by invoking criminal enforcement agencies sends a message that such conduct is less serious in the workplace than it is in society in general. As statistics show, nothing could be further from the truth.