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2 2 Interpretations, Policies and Guidelines (IPGs) IPG-081 Violence Prevention in the Work Place

3 3 Agenda What is Work Place Violence (WPV) Entities Involved in WPV Complaints Complaints from Former Employees Employer Duties Regarding WPV Complaints Complaints to the Labour Program Part XX vs. Part XV Requirements

4 4 What is Work Place Violence (WPV)? Section 20.2 of COHSR any action, conduct, threat or gesture of a person towards an employee in their work place that can reasonably be expected to cause harm, injury or illness to that employee FC-1066, PSAC v. CFIA Includes incidents that cause psychological harm etc. [29] Therefore harassment of the kind inflicted upon the employee in this case may constitute work place violence, if after a proper investigation by a competent person it is determined that the harassment includes actions, conduct or gestures that can reasonably be expected to cause harm or illness to the employee. In my opinion, psychological bullying can be one of the worst forms of harm that can be inflicted on a person over time.

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6 6 Entities Involved in WPV Complaints Complainant Must have been an employee when Employer first notified of WPV complaint Respondent Term used for the alleged aggressor who is accused of committing WPV May or may not be an employee of the work place. Employer Receives and must try to resolve WPV complaints Must appoint Competent Person to investigate unresolved WPV complaints Competent Person (CP) A competent person means a person who: (a) is impartial and is seen by the parties to be impartial; (b) has knowledge, training and experience in issues relating to work place violence; and (c) has knowledge of relevant legislation. Appointed by Employer to investigate unresolved WPV complaints. May or may not be an employee of the work place. Must investigate complaint and determine if employee was exposed to WPV Must provide Employer written report, including recommendations if applicable

7 7 Entities Involved in WPV Complaints Policy/Work Place Health and Safety Committees/Representative (P/WPHSC/HSR) Must be consulted by Employer in selection of CP CP Report/Recommendations Witness Any person who provided information to the Employer or Competent Person May or may not be an employee of the work place.

8 8 Employer Duties WPV Complaints Step 1 Employer is made aware of Complaint Can be made in person or in writing

9 9 Complaints From Former Employees WPV complaints from former employees are covered by Part XX as long as all three (3) of the following conditions are met: a) Complainant was an employee when the complaint was originally filed; b) Respondent is still in the work place; and c) Complainant still wants the complaint resolved. In these cases, the Employer must address the former Employee s complaint in the same manner, as if this individual was still employed.

10 10 Complaints From Former Employees If Complainant was terminated and believes this was a result of filing the WPV complaint, the Complainant may be eligible to file a complaint with: the Canada Industrial Relations Board (CIRB) under s. 133 of Part II of the Canada Labour Code (the Code) (action against employee dismissal, suspension, demotion, etc. for exercising rights under Part II); the Labour Program under s. 240 of Part III of the Code (unjust dismissal); or the Public Service Labour Relations Board (notwithstanding internal grievance procedures).

11 11 Employer Duties WPV Complaints Step 2 - Employer must try to resolve complaint Subsection COHSR 20.9(2) If an employer becomes aware of work place violence or alleged work place violence, the employer shall try to resolve the matter with the employee as soon as possible. Employer should fully understand the complaint and should focus on trying to resolve complaint, rather than determining if WPV occurred. Employer must not disclose identities of Complainant, Respondent, and/or Witnesses without their consent Employer should consider suggestions for resolution from Complainant and Respondent Employer should confirm with Complainant if complaint has been resolved.

12 12 Employer Duties WPV Complaints Step 3 - Employer shall appoint a Competent Person (CP) Subsection COHSR 20.9(3) If the matter is unresolved, the employer shall appoint a competent person to investigate the work place violence and provide that person with any relevant information whose disclosure is not prohibited by law and that would not reveal the identity of persons involved without their consent.

13 13 Employer Duties WPV Complaints Step 3 - Employer shall appoint a CP (continued) Unless it plain and obvious that the alleged incidents do NOT constitute WPV, it must be assumed that they DO, and a CP must be appointed FC-1066, PSAC v. CFIA [37] Once such initial fact finding is unsuccessful in resolving the dispute, and the allegation of work place violence remains a live issue between the employer and employee, unless it is plain and obvious that the complaint was not related to work place violence, there is a mandatory duty for the employer to proceed under section 20.9(3) to appoint a competent person to investigate the complaint, under section 20.9(1) of Part XX of the Regulations FCA-273, CFIA v. PSAC [34] I agree with the application judge that the threshold, should be quite low, and that an employer has a duty to appoint a competent person to investigate the complaint if the matter is unresolved, unless it is plain and obvious that the allegations do not relate to work place violence even if accepted as true. The employer has very little discretion in this respect.

14 14 Employer Duties WPV Complaints Step 3 - Employer shall appoint a CP (continued) PHSC/WPHSC/HSR (as applicable) must be consulted on selection of the CP. If agreement not reached:»employer may make selection, but should provide justification to the PHSC/WPHSC /HSR Complainant and Respondent (if an employee) must be consulted on selection of CP. If agreement not reached (e.g. because of concerns re: impartiality or qualifications):» Employer may make selection» Complainant or Respondent may file complaint directly with Labour Program (i.e. can by-pass ICRP)» Upon being advised above complaint has been filed, Employer must decide whether to: Proceed with appointment, knowing HSO could deem resulting investigation invalid, or Wait until HSO has ruled on suitability of the selected person, before appointing them as CP. Note: If Employer decides to proceed with appointment, Complainant and Respondent must cooperate as if the appointed person was a CP, pending HSO decision.

15 15 Employer Duties WPV Complaints Step 4 - CP shall investigate and write report CP shall fully investigate complaint. If Complainant, Respondent, or Witnesses do not give Employer consent to disclose their identities to the CP, the CP should still obtain information from these persons, either anonymously, or via third-party intermediaries. CP shall determine if Complainant was exposed to WPV, and if so, develop recommendations to prevent future re-occurrences. CP shall provide Employer written investigation report.

16 16 Appendix C - Competent Person Report Template

17 17 Appendix C - Competent Person Report Template

18 18 Appendix C - Competent Person Report Template

19 19 Employer Duties WPV Complaints Step 5 - Employer shall distribute and implement CP report Upon receiving the CP Report, Employer shall forward copies to the Complainant, Respondent (if an employee), and WPHSC/HSR. Employer shall provide at a minimum, copy of any recommendations in the CP Report to the PHSC. Prior to providing to the above parties, the Employer shall redact any identifying personal information for the Complainant, Respondent and/or Witnesses, if they have not provided their consent. Employer shall consult with PHSC/WPHSC/HSR (as applicable) regarding the implementation of any recommendations in CP Report. Where reasonably practicable, Employer shall implement recommendations within 90 days of receiving CP Report.

20 20 Recommendations Common examples: one-on-one meeting information sessions/training team meetings screen around driver location of cash from main entrance counter locations cameras

21 21 Complaints to Labour Program Reasonably Practicable COHSR 20.6 (1) Once an assessment of the potential for work place violence has been carried out under section 20.5, the employer shall develop and implement systematic controls to eliminate or minimize work place violence or a risk of work place violence to the extent reasonably practicable. Numerous provisions of the COHSR stipulate that the employer must comply with specific provisions, but only to the extent that compliance is "reasonably practicable". Refer to: IPG-055 Criteria for Reasonably Practicable, and Reasonably Possible. 4.2: The criteria a HSO must consider when determining if compliance with a specific COHSR is "reasonably practicable" include both the technical and economical aspects of compliance: a. The technical aspect - is it physically possible to comply, and would compliance introduce other hazards or areas of non-compliance, such as nullifying any required Canadian Standards Association (CSA), Underwriters' Laboratories of Canada (ULC) or similar agency approval? b. The economical aspect - would the cost to comply significantly outweigh the benefits. This criterion in turn requires an assessment of the benefits of compliance.

22 22 Complaints to Labour Program Must follow the Internal Complaint Resolution Process (ICRP) under s of the CLC II Under the ICRP, before a complaint (other than a refusal to work) is accepted by the Labour Program for investigation, it must have been investigated internally by the work place parties. For example, the employer has not: consulted with PHSC on development of WPV Prevention Policy (COHSR 20.1) developed, or posted, WPV Prevention Policy (COHSR 20.3) developed and implemented controls to protect employees against WPV (COHSR 20.6 (1)) reviewed/updated as necessary, WPV prevention measures every 3 years (COHSR 20.7(1)) provided information, instruction and training to employees (COHSR 20.10)

23 23 Complaints to Labour Program When can you bypass the ICRP and go directly to Labour Program? an Employer does not try to resolve a WPV complaint under COHSR 20.9(2) an Employer does not appoint a CP to investigate an unresolved complaint one or more parties question the suitability of the appointed CP the Complainant or Respondent are refused a copy of CP Report an Employer does not implement all recommendations in CP Report (COHSR 20.6(1))

24 24 Part XV vs. Part XX Requirements WPV Incidents resulting in circumstances listed in 15.5 or 15.8(1) of COHSR, must also be investigated and reported to the Labour Program under Part XV The employer shall report to the Minister, by telephone or telex, the date, time, location and nature of any accident, occupational disease or other hazardous occurrence referred to in section 15.4 that had one of the following results, as soon as feasible but not later than 24 hours after becoming aware of that result: (a) the death of an employee; (b) a disabling injury to two or more employees; (c) the loss by an employee of a body member or a part thereof or the complete loss of the usefulness of a body member or a part thereof; (d) the permanent impairment of a body function of an employee; (e) an explosion; (f) damage to a boiler or pressure vessel that results in fire or the rupture of the boiler or pressure vessel; or (g) any damage to an elevating device that renders it unserviceable, or a free fall of an elevating device (1) The employer shall make a report in writing, without delay, in the form set out in Schedule I to this Part setting out the information required by that form, including the results of the investigation referred to in paragraph 15.4(1)(a), where that investigation discloses that the hazardous occurrence resulted in any one of the following circumstances: (a) a disabling injury to an employee; (b) an electric shock, toxic atmosphere or oxygen deficient atmosphere that caused an employee to lose consciousness; (c) the implementation of rescue, revival or other similar emergency procedures; or (d) a fire or an explosion.

25 25 Part XV vs. Part XX Requirements (continued) If an incident of WPV also results in a disabling injury to an employee as defined in section 15.1 of the COHSR, or requires the,...implementation of rescue, revival or other similar emergency procedures... as per paragraph 15.8(1)(c) of the COHSR, then the employer must also investigate and report the incident to the Labour Program under Part XV of the COHSR. Is police response to a WPV incident considered other similar emergency procedures? Yes for example, police responding to an assault or robbery would be considered emergency procedures. Is a psychological injury (resulting from WPV) considered a disabling injury? Yes - if it results in lost time or modified duties.

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