Liability when non-employee gains access to the workplace
Question: Is the employer liable if an outsider gains access to the workplace and assaults an employee, even if the employer increases security following the incident?
Answer: Recently, traditional concepts of Occupational Health and Safety (OHS) matters have been expanded to include workplace violence. Legislators have recognized that employees working in certain fields may face an increased risk of workplace violence. Examples of such high-risk fields include health care, corrections services, and retail operations. Similar to the first question, the issue really comes down to prevention and an effective workplace violence policy.
Provincial OHS legislation generally imposes three broad duties upon employers: Risk assessment, the implementation of workplace violence procedures and policies, and a general duty to respond to incidents and instruct workers in regards to workplace violence.
Provincial legislation often has a definition of workplace violence in order to encompass real or potential violence by a person, other than a worker, that causes injury to a worker or gives a worker a real cause to believe she is at risk of injury. For example, in Saskatchewan, workplace violence is the attempted, threatened or actual conduct of a person that causes or is likely to cause an injury. This includes any threatening statement or behavior that gives a worker reasonable cause to believe the worker is at the risk of an injury.
Provincial legislation generally imposes an obligation on the part of employers to conduct a risk assessment for risk of injury to workers from violence arising out of their employment. In British Columbia, for example, a risk assessment must consider prior experiences in the subject workplace, occupational experience in similar workplaces, and the location and circumstances in which the work is performed. In Saskatchewan, some industries that must have a violence policy and prevention plan include: health care providers, police services, crisis counselling services, late night retail premises, financial services, taxi services and transit services. Therefore, if an employer has failed to conduct a risk assessment in accordance with provincial requirements, increased security after an incident will not be sufficient to avoid liability.
A proper workplace violence policy and prevention plan will have served an informational and educational purpose. Again, the key to informing management and staff is through effective communication and providing ample opportunity for training. Provincial legislation generally requires that workplace violence policies and prevention plans must be in writing and made readily available to all employees. Training programs should include information on how to recognize violent situations, procedures and controls for protection, proper response techniques and how to obtain assistance, and procedures for reporting violent incidents.
The underlying lesson to be learned from both questions is the best way to deal with workplace violence and harassment is for employers to ensure that workplace policies comply with their governing legislative requirements.
For more information see:
• Robichaud v. Brennan, 1987 CarswellNat 907 (S.C.C.).
