CONDOCENTRIC: Workplace Violence and Harassment

WHAT IS BILL 168?

Have you ever been the victim of violent or abusive behaviour?  In a workplace environment, being a victim of violent or abusive behaviour is not a pleasant experience and is, to say the least, unproductive to the workplace. 

In July 2010, Ontario took the clear position that workplace violence and harassment was unacceptable.  From a legal perspective, it was probably always unacceptable but now this position is embodied in statute form and provides direction to employers and workers via policy and procedural legislative directives.  This paper explores the obligations of condominium corporations under these new components of the Occupational Health and Safety Act (Ontario) (“OHSA”) and some of the challenges to condominium corporations, with a view to suggesting policy and procedural initiatives to proactively manage the risk in the “workplace”.

WHAT IS VIOLENT OR HARASSING BEHAVIOUR?

Before jumping to analyzing violent or harassing behaviour, the following definitions may serve of use. According to the OHSA:

“...worker" means a person who performs work or supplies services for monetary compensation but does not include an inmate of a correctional institution or like institution or facility who participates inside the institution or facility in a work project or rehabilitation program;

"workplace" means any land, premises, location or thing at, upon, in or near which a worker works; 

"workplace harassment" means engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome; 

"workplace violence" means,

(a)  the exercise of physical force by a person against a worker, in a workplace, that  causes or could cause physical injury to the worker,

(b)  an attempt to exercise physical force against a worker, in a workplace, that could  cause physical injury to the worker,

(c)  a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause  physical injury to the worker;...”

Violence in the workplace, including the threat of physical force that could cause physical injury, may be perpetrated by co-workers, unit owners, suppliers, members of the public or even a worker’s family member or partner. Workplace harassment is particularly and intentionally broad under the OHSA.  For the author, the challenge with the definition of “Workplace Harassment” is the vagueness as to what “unwelcome” means.  The Canadian Human Rights Commission defines it as “any behaviour that demeans, humiliates or embarrasses a person and that a reasonable person should have known would be unwelcome"¹. From the author’s perspective, in a country as richly diverse as Canada, which is a mosaic of value and belief systems often rooted in complex cultural, religious and societal norms, what is “unwelcome” to one person may not be necessarily “unwelcome” to another person.  The insertion of the standard of “reasonableness” tries to normalize this and we will see how it does.  For now, these standards accordingly place a challenge on the shoulders of the employer to try and reasonably understand what the standards should be for its workplace.  With that said, obvious behaviours like bullying or psychological harassment, sexual or racial/ethnic harassment or any harassment rooted in any other category protected by human rights legislation, should be a “no-brainer” and the author is sure that the Human Rights Tribunal will have no trouble punishing any employer guilty of permitting or executing such infractions.

WHAT DOES AN EMPLOYER NEED TO DO?

To proactively manage this issue, the OHSA requires that an employer design policies and procedures to address workplace violence and workplace harassment, specifically, an employer needs to:

1. assess the risks of workplace violence that may arise from the nature of the workplace, the type of conditions of the work and advise the health and safety representative, committee and/or employees.  The assessment shall take into account:

•  circumstances that would be common to similar workplaces; and
•  circumstances specific to the workplace².

2. prepare a policy with respect to workplace violence;
3. develop and maintain a program to implement the policy with respect to workplace violence and the program, at a minimum, must:

• include measures and procedures to control the risks identified in the assessment as likely to expose a worker to physical injury;
• include measures and procedures for summoning immediate assistance when workplace violence occurs or is likely to occur;
• include measures and procedures for workers to report incidents of workplace violence to the employer or supervisor;
• set out how the employer will investigate and deal with incidents or complaints of workplace violence; and
• include any prescribed elements.

4. prepare a policy with respect to workplace harassment;
5. develop and maintain a program to implement the policy with respect to workplace harassment, the program shall:

• include measures and procedures for workers to report incidents of workplace harassment to the employer or supervisor;
• set out how the employer will investigate and deal with incidents and complaints of workplace harassment³;

6. review the policies as often as is necessary, but at least annually; and
7. conspicuously post the policies, in written form, unless there are five or fewer workers.

 As a separate note, under section 32.0.4 of the OHSA:

“... If an employer becomes aware, or ought reasonably to be aware, that domestic violence that would likely expose a worker to physical injury may occur in the workplace, the employer shall take every precaution reasonable in the circumstances for the protection of the worker. 2009, c. 23, s. 3.

For greater certainty, the employer duties as set out in Section 25, the supervisor duties as set out in Section 27, and the worker duties as set out in Section 28 apply, as appropriate, with respect to workplace violence.  Further, an employer's duty to provide information to a worker under clause 25(2)(a), and a supervisor's duty to advise a worker under clause 27 (2) (a) of the OHSA include the duty to provide information, including personal information, related to a risk of workplace violence from a person with a history of violent behaviour if,

1. the worker can be expected to encounter that person in the course of his or her work; and
2. the risk of workplace violence is likely to expose the worker to physical injury.

An employer or supervisor shall not disclose more personal information in the circumstances of dealing with a person with a violent history than is reasonably necessary to protect the worker from physical injury.

WHAT ARE THE CONSEQUENCES?
From a worker’s perspective, stress, burnout, overwork, anxiety, loss of esteem, lack of confidence, physical and psychological injury and even death are just some of the suggested results of workplace violence or harassment.  From an employer’s perspective, lost productivity, demoralization of workforce, resources being dedicated to WSIB investigations and return to work programs, fines and potential criminal liability.

As of March 31, 2004, pursuant to Bill C-45, it became a criminal offence to fail to take reasonable steps to prevent bodily harm to a person.  This means that condominium corporations, and their directors, officers and agents who undertake the supervision of employees, can face monetary penalties and incarceration. According to Section 217.1 of the Criminal Code of Canada:

“...Duty of Persons Directing  Work
217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task...”

These standards under the Criminal Code do not replace or override an employer’s obligations under the OHSA.  Rather, an individual found guilty of an offence under the OHSA may, in addition to criminal liability, still be fined up to a maximum of $25,000.00 and/or sentenced up to one (1) year in jail per offence. If a corporation is convicted of an offence under the OHSA, the maximum fine that may be imposed upon the corporation is $500,000. Under the Criminal Code, there is no pre-determination of potential fines for indictable offences.  Conviction of criminal negligence causing death could also potentially mean a penalty of life imprisonment under the Criminal Code. 

WHAT ABOUT IN THE CONTEXT OF CONDOMINIUMS?
In the context of the condominium corporation, the definition of employer comes into play.  The OHSA states that:

“... "employer" means a person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services and a contractor or subcontractor who undertakes with an owner, constructor, contractor or subcontractor to perform work or supply services;”

In those circumstances where a condominium corporation will be interpreted as an employer, the condominium corporation must effectively manage the risk by implementing appropriate policies and procedures that meet the standards under the OHSA.  This means identifying risks in the context of the relationships between unit owners, directors, suppliers, etcetera, including those that are site specific, i.e. are based on the physical components of the site.  After identifying the same, the condominium corporation must develop methods of reasonably eliminating the risks.  Often in the context of condominium corporations, property management companies are hired and accordingly, the condominium corporation must ensure that the third party supplier adheres to the OHSA requirements. The Supplier’s standards, at a minimum, should comply with the OHSA and the expectations of the condominium corporation. 

ELEMENTS OF A POLICY

In addition to meeting the statutory requirements, policies and procedures should include in the condominium context:

1.  incorporate a broad policy statement on the position of the Corporation;
2. clearly state the relationships to which the policies apply. (For example, directors, officers, suppliers and unit owners);
3. identifying, manage and allocate risks by positive covenants on relevant third parties; and
4. assess the risks associated with the condominium corporation’s site.

BIBLIOGRAPHY

Edwards, Cheryl A. and Ryan J. Conlin, Employer Liability for Contractors Under the Ontario Occupational Health and Safety Act, 2nd ed. (Toronto: Carswell, 2007).

Kreissl, Brian et al, Bill 168 Implementation Guide. (Toronto: Carswell, 2010).

Robertson, Dilys, Canadian Health & Safety Compliance Issues. (Toronto: Carswell, 2008).

Robertson, Dilys, Canadian Health & Safety Compliance Issues. (Toronto: Carswell, 2010).

Roher, Eric M. and Borden Ladner Gervais, Violence in the Workplace, 2nd ed. (Toronto: Carswell, 2004).

Roher, Eric M. Violence in the Workplace, 3rd ed. (Toronto: Carswell, 2010).

¹  http://www.chrc-ccdp.ca/publications/anti_harrassment_part3-eng.aspx

² There may be elements prescribed by regulation that also have to be complied with, therefore when developing the policy and program, it is important to check the regulations.

³ There may be elements prescribed by regulation that also have to be complied with, therefore when developing the policy and program, it is important to check the regulations.

 For an example of our firm's template, please contact Elia Associates.

All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.

www.elia.org

© Elia Associates Professional Corporation, All Rights Reserved.