Violence is becoming an increasingly serious problem in the workplace. According to Statistics Canada, 17% of all self-reported violent incidents in Canada, including physical and sexual assault and robbery, occurred in the victim’s workplace—that’s a mind-boggling 356,000 incidents of workplace violence in the course of a single year! And 71% of these incidents involved physical assaults. These incidents don’t always lead to fatal or serious injury, of course. But they all have serious consequences. Workplace violence affects the safety and security of every worker. The emotional trauma and physical injury experienced by the victims, their families and co-workers extract a high personal cost and impact companies’ bottom line as well.
The Lori Dupont case is a sad example. In November 2005, the Ontario nurse was stabbed to death at the Hôtel-Dieu Grace Hospital where she worked. But what makes the story especially chilling is that her killer was her co-worker and former boyfriend, Dr. Marc Daniel. He later committed suicide. Senior hospital administrators were aware of Daniel’s unstable behaviour and knew he’d made threats to Dupont. Yet on the day she was murdered, the nurse and doctor were scheduled to work together. Dupont’s estate is now suing the hospital.
Recognition of the threat posed by workplace violence is relatively recent. Thus, when the OHS laws were originally enacted, they didn’t address the threat of workplace violence. But today, all employers have a legal duty to prevent violence in their workplaces either under OHS or other laws. And the burden of ensuring the company’s compliance with this duty often falls to the safety coordinator. To help you shoulder that burden, we’ll review the law on workplace violence and the requirement for addressing this hazard under the OHS laws. We’ll also tell you how to carry out one of the key compliance steps: effectively assessing the risk of violence in your workplace by getting critical information from your supervisors.
Defining Our Terms
When we use the term “violence,” we mean more than just actual physical conduct that causes or is likely to cause injury, such as punching or shooting someone. Violence also includes threats of violence, threatening behaviour and attempts to injure someone, as well as harassment and bullying. Our use of this term is consistent with the definitions of workplace violence in the OHS laws. For example, Sec. 37(1) of Saskatchewan’s OHS Regulations defines “violence” to mean “the attempted, threatened or actual conduct of a person that causes or is likely to cause injury, and includes any threatening statement or behaviour that gives a worker reasonable cause to believe that the worker is at risk of injury.”
WHAT THE LAW SAYS
An employer’s legal duty to address violence in the workplace stems, in part, from the OHS laws. The jurisdictions take two general approaches to addressing workplace violence:
8 Specific Duty Jurisdictions
The OHS laws of seven jurisdictions—Fed, AB, BC, MB, NS, PEI and SK—impose a specific duty on employers to take steps to address workplace violence. The federal government recently amended its OHS Regulations to include this duty, which took effect June 17, 2008. The workplace violence section in SK’s OHS Regulations and NS’s Violence in the Workplace Regulations apply to only employers in certain high-risk sectors, such as schools, healthcare facilities, banks, retail stores and correctional facilities. But the Nova Scotia regulations specifically state that all workplaces must recognize violence as a workplace hazard in carrying out their duties under the OHS laws [Sec. 3]. Presumably, workplaces in Saskatchewan that aren’t in the designated high-risk sectors must also treat workplace violence as a hazard and provide appropriate protection for workers.
Québec also imposes a duty to address workplace violence on employers but not in its OHS law. The Québec Labour Standards Act requires employers to prevent “workplace psychological harassment,” defined as including unwanted conduct, verbal comments, actions or gestures that affect a worker’s “physical integrity.” So this requirement presumably applies not only to non-physical acts of harassment but also to more extreme forms of harassment, such as physical violence.
Insider Says: There’s a bill pending in Ontario that would amend the OHS Act to expressly require employers to take steps to assess and address workplace violence. Bill 29 passed its first reading without opposition on Dec. 13, 2007.
General Duty Jurisdictions
The remaining six jurisdictions—NB, NL, NT, NU, ON and YT—don’t specifically address workplace violence in their OHS laws (although, as noted above, Ontario may soon require specific measures against workplace violence). But the OHS law in each has a “general duty clause” that requires employers to provide a reasonably safe workplace and protect workers from foreseeable hazards that can cause serious injury or death. And this general duty most likely requires employers to protect their workers from workplace violence. In fact, some jurisdictions have said as much. For example, the Ontario Ministry of Labour says on its website, “Under the Occupational Health and Safety Act, all employers must take every precaution reasonable in the circumstances to protect the health and safety of their workers in the workplace. This includes protecting them against the risk of workplace violence.”
Example: A union filed a grievance against an employer in Ontario. It argued that the employer had failed to meet its duty under the OHS Act to provide a safe work environment when it allowed a foreman to bully a worker. The arbitrator concluded that the foreman had publicly humiliated the worker on a regular and continual basis, noting that “[t]his form of humiliation was akin to placing him in the public stocks.” In addition to the general duty clause, the arbitrator suggested that because the abuse came from a foreman the company had also violated its duty under Sec. 25(2)(a) of the Act to provide health and safety supervision to the worker. And the arbitrator held both the foreman and the employer responsible for the way the worker was treated. It ordered the employer and foreman to pay the worker $25,000 and required the employer to take steps to ensure that the worker would have no further contact with the foreman [Toronto Transit Commission v. Amalgamated Transit Union].
CONDUCTING A WORKPLACE VIOLENCE ASSESSMENT
Most of the eight specific duty jurisdictions set out specific steps employers must take to address violence in the workplace. Although these requirements vary slightly from jurisdiction to jurisdiction, the approach and required measures are pretty much the same everywhere. One of the cornerstone requirements: conducting an assessment of the risk of violence in the workplace. For example, Part 20.5(1) of the new federal workplace violence section of the OHS Regulations requires employers to assess the potential for workplace violence by taking into account the following:
- The nature of the work activities;
- The working conditions;
- The design of the work activities and surrounding environment;
- The frequency of situations that present a risk of workplace violence;
- The severity of the adverse consequences to the worker exposed to a risk of workplace violence;
- The observations and recommendations of the workplace violence policy committee or JHSC and the workers; and
- The measures that are already in place to prevent and protect against workplace violence.
But even if your workplace is not in one of the eight specific duty jurisdictions, it’s still advisable to conduct a workplace violence assessment patterned after those that are required by the OHS laws of the other jurisdictions. Why? Because the obligation to conduct assessments represents the current legal standard for workplace violence prevention. Accordingly, courts in the six jurisdictions that don’t have specific duties may look at those requirements to determine whether your company’s response to violence in your own workplace was reasonable.
Survey Supervisors as Part of Assessment
The purpose of a violence risk assessment is to identify which workers may be at risk of violence, the kinds of violence they may face and the degree of risk. It also enables you to determine whether control measures are in place to address this risk and, if so, whether these measures are adequate. After you conduct an initial assessment of the workplace, Nova Scotia’s guidelines recommend that you regularly review that assessment at least once every five years. (Consult your company’s lawyer to see if more frequent reviews are necessary.) You should also review your assessment when and if circumstances change in case the risk of violence has increased. And you should review it if a violent incident occurs.
You should involve the JHSC in the violence risk assessment. In fact, several jurisdictions, such as Fed, MB and NS, specifically require the employer to coordinate with the JHSC. A key aspect of the assessment is getting information from supervisors. After all, they’re on the front line and so may have the best perspective on the likelihood of violence in the workplace. An effective and efficient way to get this information is to have each of them complete a survey that asks them about key factors indicating the potential for workplace violence. There’s a supervisor survey here that’s based on a violence hazard assessment form from the Education Safety Association of Ontario. The survey covers the following:
- A description of the department or area the supervisor is in charge of;
- Any history of violence in the department;
- Activities in the department that could expose workers to violence;
- Factors that might increase the risk of violence in the department;
- Measures in place to address violence; and
- Additional measures recommended and the resources need to implement those measures.
Insider Says: You should also get information from workers on their experience with workplace violence. Click here to download a model workplace violence survey from the Toolbox that you can use to get such information from your workers.
Don’t let another Dupont tragedy happen in your workplace. It’s crucial that you assess your workplace’s risk of violence and then take the necessary steps to address that risk. And if ensuring the safety of workers isn’t enough motivation, taking steps to prevent violence is critical to protecting your company against liability. After all, the statistics indicate that incidents of workplace violence are increasing. So it’s likely that at some point, your workplace may experience such an incident. If it does, your company will need to be able show that it took all reasonable steps to prevent the incident from happening.
SHOW YOUR LAWYER
Toronto Transit Commission v. Amalgamated Transit Union,  132 L.A.C. (4th) 225, Oct. 6, 2004