Employers are increasingly under the microscope for providing due diligence on protecting workers from workplace violence
Two recent Ontario Provincial Court decisions highlight the increasing importance that the courts, the Ontario Ministry of Labour, employers and employees are placing on the need to protect workers from incidents of workplace violence. On July 15, 2016, after an extensive trial, the Royal Ottawa Health Care Group was acquitted of three charges under the Occupational Health and Safety Act (OHSA) following the assault of three employees by a patient. Just over one month later, on Aug. 17, Kinark Child and Family Services was fined $125,000 after pleading guilty to a charge resulting from an assault of two youth workers by a youth in care. These cases might signal the beginning of an increased number prosecutions of public institutions under the workplace violence provisions of the OHSA.
The OHSA imposes a general duty on employers to "take every precaution reasonable in the circumstance for the protection of a worker" and to "provide information, instruction and supervision to protect the health and safety of a worker." This obligation is expressed in more detail in the Violence and Harassment sections of the OHSA, which set out a general code of minimum standards employers must meet, which include the following:
• A written policy with respect to workplace violence
• A program to implement the policy, which includes "measures and procedures for summoning immediate assistance when workplace violence occurs or is likely to occur."
The rationale for these requirements was succinctly explained by an arbitrator while upholding the termination of an employee who made a death threat against a co-worker.
"The theory is that workplace violence is usually foreshadowed. It is, in many cases, predictable. The amendments reflect the view that violence can be prevented if employers, supervisors, and workers, seriously heed signs of danger, communicate clearly, and act with clarity when risk is identified," said the arbitrator.
While each employer is left to devise its own policies and program to suit its own unique circumstance, it is often difficult to assess, in advance, whether a policy or program is sufficient to discharge the statutory obligation. Further, any injury to a worker resulting from workplace violence will call into question the sufficiency of the measures taken by an employer up to that point.
The Royal Ottawa and Kinark decisions
In the Kinark decision, a youth in care assaulted two workers, causing physical and psychological injuries. The employer, Kinark, pleaded guilty to charges of failing to provide information, instruction and supervision to protect a worker from workplace violence or the risk of violence from a resident. The court imposed a fine of $125,000, which amount increased to over $156,250 after the addition of a mandatory 25 per cent victim impact surcharge.
While the court did not provide much detail as to the deficiencies in Kinark’s policies or procedures, the Royal Ottawa decision does provide employers with some guidance as to what an acceptable implementation program would look like.
In Royal Ottawa, the first charge against the hospital related to an alleged failure to have measures and procedures for summoning immediate assistance when workplace violence occurred. Evidence showed that the unit in question had been provided with 20 telephones from which an incident could be announced and assistance summoned. In addition, phones had a "speed dial" setting for automatically initiating an announcement. But the room where the first assault occurred did not have a phone on which an emergency could be announced, though patients were not supposed to enter that room, and it could be locked from the inside. The court found "perceived deficiencies" in the program did not establish the Crown’s case beyond a reasonable doubt and dismissed the charge.
The second and third charges were with respect to "failing to provide ‘sufficient’ information and instruction to protect a worker from workplace violence" and "failing to take every precaution reasonable under the circumstance for the protection of a worker." The court concluded the Crown had failed to prove either charge beyond a reasonable doubt. In particular, it noted that the hospital had not received any indication that its training or instructions were inadequate prior to the incident.
The Royal Ottawa decision is currently under appeal. It is possible that further guidance on what constitutes an acceptable program will be provided by the appellate court.
Implications for employers
The above decisions are anticipated to be the first of many along these lines. Future cases will likely also explore the elements required to establish the defence of due diligence – in particular, whether employers are obliged to remove potentially violent persons from the workplace. This raises a number of complicating factors in the context of school boards where the expulsion or exclusion of pupils can be subject to appeal, and where students may continue to have a right to education.
Employers should take the statements and results in each of the above decisions as a cautionary tale on the importance of having well-considered policies to detect, prevent and minimize the incidence of workplace violence. Every workplace incident creates an opportunity to reassess and improve a system. Incidents in one school may well have implications for practices that should be adopted by all schools in the jurisdiction. Failure to do so could result in serious injury to a worker and, ultimately, legal consequences.
Bryan J. Buttigieg is a partner with Miller Thomson LLP in Toronto, practicing environmental and occupational health and safety law. He can be reached at (416) 595-8172 or [email protected]