Other laws in Ontario already protect workers from harassment, violence
Is it really necessary? As Bill 168 — Ontario’s workplace violence and harassment legislation — rounds the clubhouse turn and enters the home stretch, scheduled to come into force on June 15, that’s one question that does not seem to have been asked.
Let’s go back to the starting gate. On Dec. 9, 2009, the Ontario government passed Bill 168, a law that imposes expanded and new responsibilities on employers to prevent and respond to workplace violence and harassment. The bill was introduced, at least in part, in reaction to an increasing number of incidents of workplace violence and, in particular, the murder of nurse Lori Dupont in Windsor, Ont., by a co-worker.
The coroner’s inquest into Dupont’s death recommended a review of Ontario’s Occupational Health and Safety Act and examined the feasibility of including domestic violence, abuse and harassment as matters subject to Ministry of Labour investigation and action. As a result, one can easily imagine the political pressure that was brought to bear on the government to act decisively and swiftly.
The result was the passage of Bill 168, which sets out a duty for every employer to take specific steps to proactively prevent and manage workplace harassment and violence. The legislation covers not only the acts of co-workers but goes further to try and protect employees from individuals who may come into the workplace and from acts of domestic violence.
Every employer in Ontario must:
• carry out a risk assessment to identify potential sources of workplace violence and harassment
• develop policies to address workplace violence and harassment
• ensure an appropriate response to an incident or threat of workplace violence or an incident of harassment.
It’s extremely difficult to argue against the objectives of the legislation, which are to ensure harassment- and violence-free workplaces. In fact, the trifecta — of a horrible workplace tragedy, the political visibility of the issue and the universal acceptance of the goals of the legislation being right-minded — likely made it an easy piece of legislation to introduce and pass.
But perhaps the more compelling and immediate issue for HR professionals relates to the number of onerous, time-consuming and management-intensive due diligence steps required to become and remain compliant with the legislation.
For example, while very little guidance is offered by the legislation in terms of carrying out a risk assessment, this clearly involves a time-intensive historical review of harassment and violence in the workplace to identify any common denominators, as well as researching similar employers’ experiences and consulting with employees. Moreover, once the risk assessment has led to the creation of a workplace harassment or violence policy, that policy must be provided to all employees in conjunction with programs to implement it.
Quite apart from the time required to conduct the risk assessment, create and promulgate the workplace harassment and violence policy and develop an appropriate response protocol, one can readily imagine the dissemination of such a policy to all employees will lead to a proliferation of harassment and violence complaints, matters that inevitably fall within the jurisdiction of HR.
Imagine a scenario, after the implementation of the new legislation, where an employee feels blindsided by a critical performance evaluation. Is that workplace harassment? Will it lead to a complaint? Does that require an investigation and report? What is the interest, if any, of the Ministry of Labour in such a complaint?
Bill 168 presupposes there was a legal vacuum that needed to be filled in the first place — that harassment and violence in the workplace had not yet been addressed or at least not been addressed in an adequate fashion, by statute and legal principles. But consider the following:
Common law: For decades the common law has considered it an implied term of every employment relationship that an employee not be required to work in an atmosphere of hostility, embarrassment or humiliation. Rather, employees are entitled to an employment relationship and environment of civility, decency, respect and dignity. Further, employers have a duty of care towards employees based upon their awareness of events in the workplace and a reasonable response to those events, and can be liable for negligence should they fail to act.
Occupier’s liability legislation: This requires an employer to ensure work premises are safe for persons who may reasonably be expected to enter.
Human rights law: The Ontario Human Rights Code legislates against harassment in the workplace on prohibited grounds. (It is noteworthy the definition of harassment in the code is virtually identical to the definition in Bill 168.)
Criminal Code: The Criminal Code addresses violence in the workplace covering acts of violence such as:
• assault
• criminal harassment
• uttering threats
• hostage taking
• sexual assault
• murder.
Perhaps additional pressure was brought to bear on Ontario when politicians looked east and west and saw Quebec had enacted law on psychological harassment in the workplace in 2004 and Saskatchewan amended its Occupational Health and Safety Act in 2007. Those legislative enactments were viewed as progressive and, when coupled with the high visibility of recent workplace violence occurrences in Ontario, likely conspired to bring sufficient pressure upon politicians to act and, moreover, to be seen to have acted.
Many HR specialists are left to ponder the practical implications of Bill 168. Will it actually reduce workplace harassment and violence? How much time and effort will be involved in ensuring the workplace is compliant? Has the law really changed and, perhaps more importantly, advanced in some palpable manner? Or is this legislation more of a high-visibility, politically correct reaction that will put enormous pressure on HR without solving or addressing the issue in any meaningful way?
Workplace harassment and, even in perhaps more rare circumstances, workplace violence have been around historically since the workplace came into existence. Tolerance for both has dramatically decreased with time. Training has had a critical impact on improving workplace civility and behaviour. Publication of an employer’s position on workplace harassment and violence is a cornerstone of reducing incidents. Finally the law, both the common law and statutory framework, have combined to act as a deterrent to those who would harass, bully or act out violently in the workplace.
Is another piece of legislation really going to change the workplace? Is Bill 168 proactive or reactive? Is it designed to achieve high political visibility and applause or is there some breakthrough in its provisions that will provide new tools for companies to more effectively combat workplace violence and harassment? Or is Bill 168, ultimately, just a form of workplace harassment?
Norm Grosman is managing partner at Grosman, Grosman & Gale, a Toronto law firm specializing in employment law. He’s also one of the top employment lawyers in Canada, as ranked by Lexpert. He can be reached at (416) 364-9599 or visit www.grosman.com for more information.
