Extremely violent workplace incidents are rare but employers have responsibilities and options
Violence in the workplace, specifically that caused by a dangerous employee, is becoming an issue of increasing concern for employers. A number of high-profile tragedies have focused greater attention on this subject and emphasize the need for employers to be vigilant.
On Nov. 12, 2005, a Windsor, Ont., nurse was murdered at work by her former boyfriend and colleague, an anaesthesiologist. The doctor, who had a history of harassing and erratic behaviour in the workplace, was found an hour later, unconscious and in critical condition with a suspected drug overdose. He later died.
On Oct. 15, 2002, Dick Anderson of Kamloops, B.C., was fired from his job as a regional manager. He returned to the office with a handgun and shot and killed two employees before turning the gun on himself. Following an investigation by WorkSafeBC (British Columbia’s workers’ compensation board), it was determined a combination of work and personal stress, culminating with the unexpected news of his dismissal, contributed to the violent incident.
Employers should be aware there are things they can do to reduce the likelihood of similar scenarios happening in their workplaces and know their potential liability if precautions aren’t taken.
Employer liability for violence in the workplace
Employers can be held liable for negligence in incidents of violence in the workplace. An employee who is a victim of violence may allege his employer failed to discharge certain duties, such as warning of a reasonably foreseeable risk in the workplace or maintaining a safe workplace. In a negligence case, an employee must usually prove:
• the employer owed a duty of care to the employee;
• the employer breached the standard of care owed to the employee;
• the employer’s breach was the proximate cause of the employee’s injury; and
• the employee suffered actual damage or loss as a result of the injury.
The difficulty for employers is the possible range of negligence claims that can be brought by an employee or a third party who has been harmed by a worker and the unpredictability of the application of often tenuous concepts contained in negligence theories.
A negligence claim could arise at the hiring stage. In K. (W.). v. Pornbacher, it was alleged the employer should have taken more steps to ensure it was not hiring an individual considered a risk to children. A former altar boy brought the action against the church and the priest who had sexually assaulted him. The claim failed on the basis that, even if the church had conducted a proper background and character check, there was no information that would have indicated the priest represented a risk to children.
Nonetheless, when hiring an individual who will be working and interacting with vulnerable persons, it is necessary to properly investigate and ensure there is no relevant negative information by soliciting as much information as possible on an application and contacting references.
Like the common law standard of care, an employer is statutorily required to take reasonable precautions to prevent acts of violence and adequately respond to violent incidents.
Ontario legislation provides an example of the protections and sources of liability:
• the Occupational Health and Safety Act creates duties for employers, supervisors and workers alike to prevent and remedy health and safety hazards (including violent acts) in the workplace;
• the Occupiers’ Liability Act provides that an occupier of premises owes a duty of care to persons coming onto its premises;
• the Workplace Safety and Insurance Act, 1997, extinguishes the right of workers to bring certain actions against their employers that are subject to the act, as long as the accident (which may include injuries from violence) arises out of and in the course of employment;
• liability under the federal Criminal Code may arise where an organization shows a reckless disregard for the safety of workers and the public — it may be imposed on the organization for both negligent and intentional acts of its representatives and employees; and
• potential for liability for employers under the Ontario Human Rights Code may arise as a result of workplace harassment.
Preventing and reducing liability for violence
While employers that deal with money or the public, handle drugs or carry out enforcement or inspection duties are at a greater risk of violence in the workplace, all employers should develop a reasonable policy to proactively prevent and deal with violence in the workplace.
The policy should:
• commit to providing a violence-free environment and clearly define the types of behaviours that constitute workplace violence;
• prohibit the possession and use of dangerous weapons at work;
• identify which employees are at particular risk as targets, including front-line staff such as receptionists;
• require employees to report any incidents of violent behaviour, or suspicions, to their supervisor or HR as soon as possible and ensure no reprisals are taken against employees who report incidents;
• appropriately train those responsible for the administration of the policy;
• include safety protocols, such as detailed instructions on how to handle unauthorized visitors in the building;
• clearly communicate behavioural expectations, including zero tolerance for threats, intimidation, harassment and violence;
• include the right to discipline or terminate an employee immediately for violent misconduct;
• implement an internal dispute-resolution process to allow employees to express their workplace frustrations before they become more serious (an effective process should allow employee disputes and complaints to be resolved at an early stage and in an informal manner);
• outline complaint and investigation procedures for employees to report threats, concerns and complaints;
• ensure individuals assigned to investigate and respond to complaints are able to identify and handle aggression and emotionally charged situations; and
• indicate what post-incident resources or treatment programs are available and how employees can avail themselves of such resources.
For more information see:
•K. (W.) v. Pornbacher, 1997 CarswellBC 40 (B.C. S.C.).
Lisa De Piante is an employment and labour lawyer with Borden Ladner Gervais in Toronto. She can be reached at (416) 367-6217 or [email protected].
On Nov. 12, 2005, a Windsor, Ont., nurse was murdered at work by her former boyfriend and colleague, an anaesthesiologist. The doctor, who had a history of harassing and erratic behaviour in the workplace, was found an hour later, unconscious and in critical condition with a suspected drug overdose. He later died.
On Oct. 15, 2002, Dick Anderson of Kamloops, B.C., was fired from his job as a regional manager. He returned to the office with a handgun and shot and killed two employees before turning the gun on himself. Following an investigation by WorkSafeBC (British Columbia’s workers’ compensation board), it was determined a combination of work and personal stress, culminating with the unexpected news of his dismissal, contributed to the violent incident.
Employers should be aware there are things they can do to reduce the likelihood of similar scenarios happening in their workplaces and know their potential liability if precautions aren’t taken.
Employer liability for violence in the workplace
Employers can be held liable for negligence in incidents of violence in the workplace. An employee who is a victim of violence may allege his employer failed to discharge certain duties, such as warning of a reasonably foreseeable risk in the workplace or maintaining a safe workplace. In a negligence case, an employee must usually prove:
• the employer owed a duty of care to the employee;
• the employer breached the standard of care owed to the employee;
• the employer’s breach was the proximate cause of the employee’s injury; and
• the employee suffered actual damage or loss as a result of the injury.
The difficulty for employers is the possible range of negligence claims that can be brought by an employee or a third party who has been harmed by a worker and the unpredictability of the application of often tenuous concepts contained in negligence theories.
A negligence claim could arise at the hiring stage. In K. (W.). v. Pornbacher, it was alleged the employer should have taken more steps to ensure it was not hiring an individual considered a risk to children. A former altar boy brought the action against the church and the priest who had sexually assaulted him. The claim failed on the basis that, even if the church had conducted a proper background and character check, there was no information that would have indicated the priest represented a risk to children.
Nonetheless, when hiring an individual who will be working and interacting with vulnerable persons, it is necessary to properly investigate and ensure there is no relevant negative information by soliciting as much information as possible on an application and contacting references.
Like the common law standard of care, an employer is statutorily required to take reasonable precautions to prevent acts of violence and adequately respond to violent incidents.
Ontario legislation provides an example of the protections and sources of liability:
• the Occupational Health and Safety Act creates duties for employers, supervisors and workers alike to prevent and remedy health and safety hazards (including violent acts) in the workplace;
• the Occupiers’ Liability Act provides that an occupier of premises owes a duty of care to persons coming onto its premises;
• the Workplace Safety and Insurance Act, 1997, extinguishes the right of workers to bring certain actions against their employers that are subject to the act, as long as the accident (which may include injuries from violence) arises out of and in the course of employment;
• liability under the federal Criminal Code may arise where an organization shows a reckless disregard for the safety of workers and the public — it may be imposed on the organization for both negligent and intentional acts of its representatives and employees; and
• potential for liability for employers under the Ontario Human Rights Code may arise as a result of workplace harassment.
Preventing and reducing liability for violence
While employers that deal with money or the public, handle drugs or carry out enforcement or inspection duties are at a greater risk of violence in the workplace, all employers should develop a reasonable policy to proactively prevent and deal with violence in the workplace.
The policy should:
• commit to providing a violence-free environment and clearly define the types of behaviours that constitute workplace violence;
• prohibit the possession and use of dangerous weapons at work;
• identify which employees are at particular risk as targets, including front-line staff such as receptionists;
• require employees to report any incidents of violent behaviour, or suspicions, to their supervisor or HR as soon as possible and ensure no reprisals are taken against employees who report incidents;
• appropriately train those responsible for the administration of the policy;
• include safety protocols, such as detailed instructions on how to handle unauthorized visitors in the building;
• clearly communicate behavioural expectations, including zero tolerance for threats, intimidation, harassment and violence;
• include the right to discipline or terminate an employee immediately for violent misconduct;
• implement an internal dispute-resolution process to allow employees to express their workplace frustrations before they become more serious (an effective process should allow employee disputes and complaints to be resolved at an early stage and in an informal manner);
• outline complaint and investigation procedures for employees to report threats, concerns and complaints;
• ensure individuals assigned to investigate and respond to complaints are able to identify and handle aggression and emotionally charged situations; and
• indicate what post-incident resources or treatment programs are available and how employees can avail themselves of such resources.
For more information see:
•K. (W.) v. Pornbacher, 1997 CarswellBC 40 (B.C. S.C.).
Lisa De Piante is an employment and labour lawyer with Borden Ladner Gervais in Toronto. She can be reached at (416) 367-6217 or [email protected].
