HARD LABOUR – BY WARDSPC LAWYERS
THE RULES IN ONTARIO - WORKPLACE VIOLENCE – EMPLOYERS’ DUTY TO PROTECT EMPLOYEES EXPLAINED
Protecting workers from workplace violence is an increasingly important objective of the Ontario Ministry of Labour, the Court and both employers and employees.
Failure to do so can result in criminal prosecution of employers under the workplace violence section of Ontario’s Occupational Health and Safety Act (the “OHSA”). For example, recently an employer in Ontario was criminally fined more than $150,000 after workers were assaulted by a youth in care at the employer’s care facility.
Generally, employers must “take every precaution reasonable in the circumstance for the protection of a worker” and “provide information, instruction and supervision to protect the health and safety of a worker.” The Violence and Harassment sections of the OHSA set out minimum standards expected of employers to achieve this general duty, including:
- a mandatory, written workplace violence policy, which should be prominently and conspicuously posted in the common area(s) of the workplace and otherwise brought to all workers’ attention, as may be appropriate in the circumstances; and
- a complementary program to implement and maintain the mandatory policy, including: “measures and procedures for summoning immediate assistance when workplace violence occurs or is likely to occur.”
The OHSA does not mandate a cookie cutter-style program suitable for every employer; rather, employers must devise their own policy and program based on their own workplace environment and individualized needs. Admittedly potential risks may be difficult to identify and assess in advance and, therefore, assessing whether a policy and program is adequate initially – nonetheless, employers must statutorily use their best efforts to do so, in consultation with everyone in the workplace ideally. Of course, any incident of workplace violence is likely to presumptively challenge whether the policy and program were adequately designed and implemented at the outset. Foreseeability of potential risk is, therefore, an important factor in effective workplace violence prevention.
Generally, the OHSA, the Ministry and even the Court promote the minimization of workplace violence by requiring employers, supervisors and workers to proactively and collaboratively consider and identify potential risks, to address them by open and constructive communication and to react properly and with certainty when any risk materializes.
If a criminal prosecution arises, the standard of proof is beyond a reasonable doubt. Employers may assert a due diligence-type of defence, if desired. What remains uncertain is the scope of the measures employers may need to take to establish this defence successfully. For example, removal of a potentially risky person in the workplace may create other legal issues, such as wrongful termination (if a worker), duties owed to patients (in a health care environment) and potential grounds of discrimination under Ontario’s Human Rights Code.
The best practice is to develop and implement a thoughtful, thorough and collaborative violence policy and complementary program to detect, prevent and minimize incidents of workplace violence. The policy and program should be regularly reviewed, revised, if appropriate, and certainty modified to address any incident of violence in the workplace. These practices will not only minimize incidents, but also assist employers to establish due diligence if a prosecution ensues due to any incident.
Thank you for reading this - Jason Ward of WARDS PC LAWYERS.
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This WARDSPC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.
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