Anti-Harassment Training Workplace Violence, Harassment, Sexual Violence & Sexual Harassment
Bill 168, Bill 132 and the Human Rights Code BACKGROUND
Bill 168 Changes To The Occupational Health & Safety Act Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) became law on December 10, 2009 Ontario workplaces had until June 15, 2010 to ready their workforce policies, programs and practices to ensure compliance with these provisions Bill 168 outlines violence and harassment obligations under Ontario s Occupational Health and Safety Act (OHSA). Under Bill 168, employers are required to create and implement workplace violence and harassment policies, programs to implement such policies, and engage in assessments designed to measure the risk of workplace violence
Bill 168 Occupational Health & Safety Act The Bill amends section 43 of the Act, which deals with a worker s right to refuse work in various circumstances where health or safety is in danger, to include the right to refuse work if workplace violence is likely to endanger the worker Under section 32.0.4 of the Act, if an employer is aware or ought to be aware of domestic violence that may occur in the workplace and is likely to expose a worker to physical injury, the employer must take every reasonable precaution to protect the worker(s)
Bill 132 Changes To OHSA Bill 132 came into effect September 8, 2016, and amends various existing statutes with respect to sexual violence, sexual harassment and domestic violence Requires an employer s program to implement a workplace harassment policy under section 32.06(2) of the OHSA to additionally set out: Measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser How incidents or complaints of workplace harassment will be investigated and dealt with
Bill 132 Changes To OHSA Requires an employer s program to implement a workplace harassment policy under section 32.06(2) of the OHSA to additionally set out: That information obtained about an incident or complaint, including identifying information about individuals involved, will not be disclosed unless the disclosure is necessary for the investigation or corrective action, or as required by law; and How a worker who has allegedly experienced workplace harassment and the alleged harasser (if he/she is a worker of the employer) will be informed of the results of the investigation and of any corrective action taken
Bill 132 Changes To OHSA When faced with a workplace harassment incident or complaint, an employer will be required to ensure that an appropriate investigation is conducted and that both the worker who has allegedly experienced harassment and the alleged harasser (if he/she is a worker of the employer) are informed of the results and of any corrective action that has been taken Bill 132 also allows an inspector to order an employer to have an investigation and report completed by an impartial third-party at the employer s expense
Why Has The OHSA Been Amended? Prior to legislative changes, incidents of workplace violence and harassment fell under section 25(2)(h) of the OHSA the Employer s general duty clause. Over the years workplace violence and harassment has been on the increase with a number of higher profile incidents raising public awareness Increased stress has played a part in increasing violence, including workplace, economic and family stress Workplaces have become more multi-cultural over the years which has also contributed to harassment and violence in the workplace
Why Has The OHSA Been Amended? Example In April 1999, Pierre Lebrun, an employee of the OC Transport in Ottawa went on a shooting spree resulting in 5 deaths including his own. He had been bullied for years and although he had complained to his supervisor, nothing was done; his supervisor even participated in the bullying The coroner s jury made 77 recommendations and paid particular attention to psychological violence, i.e. bullying, teasing, ridicule, etc. While the jury made these recommendations, as is often the case, there were no corresponding actions to the recommendations
Why Has The OHSA Been Amended? More recently, nurse Lori Dupont was murdered by her ex-boyfriend, anesthesiologist Dr. Marc Daniel Ms Dupont requested the hospital assist her and they assigned security guards to walk her to her car after her shifts, but her requests to be transferred were denied Dr. Daniel subsequently shot and killed Ms Dupont and then committed suicide The coroner s jury made a further 26 recommendations including that the OHSA be reviewed and domestic violence, abuse, and harassment be included
What is your Company s Purpose Your company must be committed to building and preserving a safe, productive and healthy working environment for employees based on mutual respect As a responsible employer, you will not condone and will not tolerate acts of violence or harassment against or by any your employees You must take every reasonable precaution and implement measures to prevent violence and protect all your employees from potentially violent situations
What is your Company s Purpose As an employer, and those of you who are managers, you are obligated to provide information, including personal information, to a worker about a person with "a history of violent behaviour" if: The worker could be expected to encounter that person in the course of his/her work; and There is a risk of workplace violence likely to expose the worker to physical injury Specifically if the Company is aware that domestic violence is likely to expose an employee to a workplace physical injury, every reasonable precaution will be implemented to protect the individual
Workplace Violence Definition The definition of workplace violence means but is not limited to: The exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker An attempt to exercise physical force against a worker, in a workplace, that causes or could cause physical injury to the worker Any threat, behaviour or action which is interpreted to carry the potential to harm or endanger the safety of others, result in an act of aggression, or destroy or damage property Disruptive behaviour that is not appropriate to the work environment (e.g., yelling, swearing)
Harassment Definition Any behaviour, in the form of words, gestures, or actions, generally repeated, that has undesired sexual or racial connotations, that has a negative impact on a person s dignity or physical or psychological integrity, or that results in the person being subjected to unfavourable working conditions Usually, harassment can be distinguished from normal, mutually acceptable socializing. It is important to remember it is the perception of the receiver of the potentially offensive message, be it spoken, a gesture, a picture or some other form of communication which may be deemed objectionable or unwelcome that determines whether something is acceptable or not It creates an uncomfortable work environment and has no place in employee relationships
Workplace Harassment Definition Under Bill 132, the OHSA s definition of workplace harassment has been expanded to include workplace sexual harassment which is defined as: Engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or Making sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation is unwelcome Bill 132 clarifies that reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment
The Human Rights Code Under the Ontario Human Rights Code, sexual harassment is engaging in a course of vexatious comment or conduct that is known or ought to be known to be unwelcome. In some cases, one incident could be serious enough to be sexual harassment. Some examples of sexual harassment are: asking for sex in exchange for a benefit or a favour repeatedly asking for dates, and not taking no for an answer demanding hugs, making unnecessary physical contact, including unwanted touching using rude or insulting language or making comments toward women (or men, depending on the circumstances)
The Human Rights Code cont d calling people sex-specific derogatory names making sex-related comments about a person s physical characteristics or actions saying or doing something because you think a person does not conform to sex-role stereotypes posting or sharing pornography, sexual pictures or cartoons, sexually explicit graffiti, or other sexual images (including online)
The Human Rights Code The Code says every person has the right to be free from unwelcome advances or solicitation in employment Employment includes applying and interviewing for a job, volunteer work, internships, etc It also includes activities or events that happen outside of normal business hours or off business premises, but are linked to the workplace and employment
The Human Rights Code A person does not have to directly refer to another person's gender or be openly sexual for the behaviour to violate the Code For example, targeting an individual because of their sex and discouraging or driving them away from continuing to work in a position is harassment
The Human Rights Code Employers operating in Ontario have a legal duty to take steps to prevent and respond to sexual harassment They must make sure they have poison-free environments that respect human rights From a human rights perspective, it is not acceptable to ignore sexual harassment, whether or not someone has formally complained or made a human rights complaint
Policies & Procedures Bills 168 and 132 require employers to develop a program to implement the workplace violence policy, and the workplace harassment policy The program must include measures to control risks of workplace violence identified in a risk assessment that is required under Bills 168 and 132 to summon immediate assistance when workplace violence occurs, and for workers to report incidents or threats of workplace violence, harassment and sexual harassment The program must also set out how the employer will deal with incidents, complaints and threats of workplace violence and harassment and sexual harassment
Policies & Procedures Employers are required to provide their employees with information and instruction on the contents of the workplace harassment policy and program The policies must be posted in your workplace and reviewed by the employer annually The employer must develop comprehensive policies and procedures with respect to Workplace Violence and Workplace Harassment, a copy of which must be posted in a place where all employees have access to it, such as a lunch room Posting your policy on the Intranet alone is not considered sufficient
Policies & Procedures Each employer must designate an employee to act as a Workplace Coordinator with respect to workplace violence and harassment issues The name of the Workplace Coordinator must be communicated and should be someone at a senior level, who has responsibility for handling confidential information Employers with less than five employees must comply to all of the Bill 168 requirements except they do not have to post their policy If you have more than one location, then you must post your policy in all locations whether it be an office, a warehouse, distribution centre, etc.
Training Requirements Bill 168 and Bill 132 training requirements include harassment in all forms, including bullying, violence in the workplace, sexual violence and harassment as well as domestic violence The Human Rights Tribunal recommends employers have a comprehensive anti-sexual harassment policy in place; everyone should know about the anti-sexual harassment policy and the steps in place for resolving complaints
Training Requirements This can be done by: giving policies to everyone as soon as they are introduced making all employees, etc. aware of them by including the policies in orientation material training people, including people in positions of responsibility, about the policies, and educating them on human rights issues Employees must be trained on the harassment and violence policies
Risk Assessment(s) The OHSA requires employers to assess the risk of workplace violence and harassment, and to report the results of the assessment(s) to the Joint Health and Safety Committee or to a Health and Safety representative The risk assessment can either be undertaken by the Workplace Coordinator or by having each employee complete a questionnaire The Workplace Coordinator analyzes the responses and prepares a report for the Joint Health and Safety Committee
Security All companies must ensure that appropriate security measures are in place at the workplace to protect workers from members of the public or customers from workplace violence and/or harassment issues
Reporting & Notifications The amendments now require that employers prepare a notice to the Ministry of Labour (MOL) under section 52 of the OHSA in the event that an employee is disabled from their regular duties, or requires medical attention, as a result of workplace violence Employers are also obligated to inform other employees of the potential of workplace violence and/or harassment situations if they are aware of the potential
Roles & Responsibilities As an employee you have the following responsibilities to your workplace. All employees should help to eliminate harassment from your workplace If you have witnessed harassment in the workplace: Inform the harassed person that you have witnessed what you believe to be harassment and that you find it unacceptable. While support is often welcome, a person may not feel that they have been harassed and normally the incident should be considered closed Encourage the harassed person to report the incident to their Manager
Roles & Responsibilities Legally, management is responsible for creating and maintaining a harassment-free workplace Management must be sensitive to the climate in the workplace and address potential problems before those problems become serious If a management employee becomes aware of harassment in the workplace and chooses to ignore it, the management employee and the Company risk being named as Respondents in a complaint and may be found liable in legal proceedings brought about by the complainant and/or human rights authorities
Roles & Responsibilities Employers must communicate the policies as well as the process for dealing with complaints Informal Complaint Procedures can include as simple a step as having the complainant approach the harasser and request he/she stop the behaviour The formal complaint procedure involves a number of steps but most importantly, it must allow for specific steps and time frames involved in investigating a complaint Companies should always consider using an outside resource to conduct investigations to ensure impartiality, confidentiality and unbiased treatment of both the complainant and the respondent
Anti-Harassment Training FREQUENTLY ASKED QUESTIONS
Q: What happens to the people who complain of workplace violence or harassment in the workplace just to retaliate against someone they don't like or get along with? A: This is a very unusual situation and more likely to occur when employees are not informed about the definition(s) of workplace violence or harassment. An explanation of the complaint procedure would discourage this type of complaint. Frivolous complaints could result in disciplinary procedures
Q: What if I feel that I m being retaliated against by an employee as a result of a complaint I ve made?. A: If you feel you are being treated unfairly after the initial complaint, you may complain of retaliation through the same procedure. Confidentiality is emphasized in every case to ensure protection of your reputation.
Q: How can the investigation be kept confidential if everyone knows what is going on? A: Confidentiality is identified as a major concern. The employee grapevine is a part of every company and certainly beyond our ability to control. It is the responsibility of the investigator to discuss the complaint only with those who might have knowledge of the situation.
Q: Will the person who acted in a violent manner with me go to jail? A: If a criminal action has occurred, the individual could face criminal charges. As an employer, our Company/Firm is required to obey applicable provincial and/or federal statutes protecting against violence in employment.
Q: If I'm accused of a violent activity, may I hire a lawyer? A: You may wish to consult with a lawyer. If you cooperate during the investigation, you should be able to expect fair treatment by the Company Employees who ignore or abuse the investigative process will be subject to disciplinary procedures.
Q: If someone else is the subject of violent behaviour, do I have to get involved as a witness? It's their problem, not mine. A: You cannot be compelled to become involved. However, we trust all employees will help eliminate violence of any kind from our workplace. A positive safe respectful work place benefits everyone and we must all be proactive.
Q: How do you decide if there were no witnesses and it's just one person's word against another? A: Many individuals with violent tendencies repeat their actions with other employees. Investigations can include former employees who have experienced this behaviour. Witnesses are not always required to establish what has occurred.
Any Other Questions?