“Profiting Through Prevention”
Today…
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A broad perspective on the issue of
workplace violence (Psychological
Harassment)
The Canadian experience
The anatomy of a violent incident
Threat/Risk Assessment
Legislative/legal obligations (Bill 168)
Prevention programming
What are we talking about…
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Continuing disagreement regarding
the definition and parameters of
violence.
Two parameters:
– physical versus Non physical
– The source (who is the perpetrator)
Violence Definitions Vary
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BC – Physical force by a person other than a worker.
(HHSR, s. 4.27)
AL – “…threatened, attempted or actual conduct of a
person that causes or is likely to cause physical injury
(Code, s. 1)
Sask. – “…attempted, threatened or actual conduct of a
person that causes or is likely to cause injury…” (Regs,
S. 37) (includes harassment)
Man. - “…attempted or exercise of physical force
against a person…” (includes harassment)
Ont. (Bill 168) – “…the exercise of physical force by a
person against a worker in a workplace…” (includes
harassment)
Psychological Harassment
“…means an vexatious behaviour in the
form of repeated and hostile or unwanted
conduct, verbal comments, actions or
gestures, that affects an employee’s dignity
or psychological or physical integrity and
results in a harmful work environment…”
Quebec Labour Standards - June 1, 2004
Regulatory Shift
As thought there has been a regulatory
migration towards the inclusion of “indirect”
forms of aggressiveness, frequently referred
to as “psychological harassment”
Saskatchewan, Manitoba, Quebec and
Ontario (pending) include harassment
Growing Pressure to expand
the Definition of Violence…
We recommend that workplace
violence be defined, not only as
physical violence but also as
psychological violence such as:
bullying, mobbing, teasing, ridicule
or any other act or words that could
psychologically hurt or isolate a
person in the workplace.
(OC Transpo Inquest – Recommendation #7)
Growing Pressure to expand
the Definition of Violence…
A Review of the Occupational Health and
Safety Act to examine the feasibility of
including domestic violence, abuse and
harassment as matters subject to
Ministry of Labour Investigation and
Action
Lori Dupont Coroner’s Inquest – December 11, 2007
The Evolution of “Bullying”
(General/Personal Harassment)
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Historically the focus of attention was
on “physical workplace violence”
Growing evidence to suggest that
interpersonal mistreatment has been a
contributor
This mistreatment has been described
as “verbal”, “indirect” and “passive”
A General Definition of
“Bullying”
Workplace bullying is the persistent
mistreatment of one or more employees,
sometimes by an employee in a position of
influence or authority, who, intentionally or
unwittingly, subjects others to behaviour that
humiliates, demoralizes or otherwise undermines
the victim’s credibility, effectiveness and
personal wellbeing.
Warning Signs of Bullying
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Unjust criticism, fault-finding and belittling
Communication that embarrasses or
humiliates the person privately or publicly
Explosive outbursts
Intentionally and repeatedly isolating
someone
Taking credit, undermining or deliberately
impeding a person's work
Intrusive contact outside of working hours
(phone calls, e-mails)
Additional Warning Signs
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Setting unrealistic goals or deadlines
Denying access to information necessary to
complete a task
Blocking applications for training, leave or
promotion
Removing areas of responsibilities
Unwarranted (or undeserved) punishment
Constantly changing work guidelines
Bullying is NOT…
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Objective comments intended as
constructive feedback
“Reasonable” action taken in a constructive
manner to advance a work process
A decision based on “reasonable” grounds
not to award, promote, transfer…
“ Reasonable” administrative action in the
course of employment.
Our Working Definition
“Any incident in which a person is abused,
threatened or assaulted in circumstances
relating to their work. These behaviors
would originate from customers, co-workers
at any level of the organization. This
definition would include all forms of
harassment, bullying, intimidation, physical
threats/assaults, robbery and other
intrusive behaviors” (IOL, 1999)
The Canadian Experience
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Women have 19% higher rate of physical
or psychological assaults than the US
Stats Can. 12,000 women 51% attacked
CUPE 1994 70% reported verbal
aggression, 40% struck, 30% grabbed
Sexual Harassment fastest growing
compliant since 1991 (Ont. Human Rights Commission)
Canada in a Global Context
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France, Argentina, Romania, Canada,
& England reported highest rates of
assaults & sexual harassment on the
job. (ILO, 1999)
Statistics Canada
Criminal violations 1998
Resident
%
Commerce
%
#
Homicide (255)
50.6
12.2 (31)
Robbery (19572)
5.4
41.7 (8162)
Criminal
Harass(5378)
69.3
10.0 (538)
Sexual Assault
(8374)
58.9
9.1 (762)
Assault (80267)
47.2
15.7 (12602)
Statistics Canada
Criminal Violations 2000
Resident
%
Commerce
%
#
Homicide (319)
48.9
12.9 (41)
Robbery (21279)
5.7
41.8 (8895)
Criminal
Harass(7143)
67.9
11.4 (814)
Sexual Assault
(9921)
59.0
8.4 (833)
Assault (103617)
48.6
15.2 (15750)
Criminal Violations
Actual number of persons
1998
Homicide 255
Robbery 19,572
Criminal 5,378
2000
Change
319
+25%
21,279 +9%
7,143
+33%
(Harassment)
Sexual
8,374
9,921
+18%
(Assault)
Assault
8,0267 10,3617
+29%
CIWV Preliminary Findings
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Violence has increased (66%)
Physical violence reported from
outside, whereas Psychological from
within
78% have taken concrete steps to act
53% suggest not enough being done
91% believe Canada different than US
but moving in that direction
What are the sources of violence?
Harassment/Bullying
Sexual Harassment
Physical Assaults
Physical Threats
0
5
10
Sometimes
15
20
25
30
35
40
Rarely
45
50
From Impoliteness to Physical Attack
Violence is rarely a spontaneous act but
more often the culmination of escalating
patterns of negative interaction between
individuals
Violence: An Interaction
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An interaction between three factors:
– Stimulus that leads subject to think this is the
only way out
– A viable solution to the problem at hand
– An organization that facilitates/permits
violence, or at least does not stop it from
occurring.
The Concept of “Control”
High Locus Control
Transitory Anxiety
Chronic Lack of Control
Perceived Injustice
Low Locus of Control
The Importance of Control
Work
Social
Physical
Interaction
The Behavioural Sequence
A
G
B
F
C
E
D
The Case of “Bullying” that
Changed Canada’s Legal
Landscape
Pierre LeBrun
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12 year employee of OC Transpo (Nov.’86-Dec.’98)
Driver, then Parts Clerk
Pronounced stutter and facial ticks at times of
stress
Complained of being teased, mimicked and
ridiculed by co-workers to OH nurse, HR worker,
doctor, and supervisor
Treated for depression
Expressed concern about being labeled a rat and
retaliation
Events of April 6, 1999
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OC Transpo St. Laurent Repair
Complex
Pierre LeBrun at 2:40 p.m. begins
shooting with a high powered hunting
rifle
Kills 4 workers, wounds 2, kills himself
Police TAC Units and paramedics
respond, reach deceased at 4:30 p.m.
The Letter
“ …I’m going to commit an unforgivable act…I
have no choice. I’m tired, exhausted and
completely backed against the wall…They will
never leave me alone. I can’t go on living like
this! They have destroyed my life, I will destroy
their life…OC Transpo and the unions can’t hide
from what they do to me…They will pay dearly
for what they’ve done to me. The people who I
hold responsible are: (four names listed) along
with many others …all I wanted was for them
to leave me alone, not to bug me but it was too
much to ask. They have spread lies, especially
that I was a rat who denounced my own union
members to try and have them stop laughing at
me.”
Co-worker Suicide
“I have been unable to sleep well since
the shooting at OC. The gunman,
Pierre had talked with me to great
length about it and where to be for a
better shot at some managers – as it
turned out he shot himself at this
location in the loft. I feel guilty as hell
for not telling anyone.” July/99
Post Event Analysis
“Pierre LeBrun worked in a “poisoned”
workplace. He was repeatedly harassed due
to his speech impediment, his tic disorder…
He complained about the ridiculing to a
number of individuals at OC Transpo…The
personal factors of speech impediment, tic
disorder, poor self esteem, anxiety,
depression and paranoia exacerbated by
workplace factors of chronic harassment and
ridicule proved to be a fatal combination…”
Dr. Peter Collins (forensic psychiatrist)
Legislative/Legal
Responsibilities
Common Law Liability
•Liability of the employer for the acts of its employees
• Liability of the employer for its own acts
Statutory Liability
• Occupier’s Liability Act
• Occupational Health & Safety Act
• Human Rights code
Criminal Code
Negligence of Employer
Rests on the employers awareness of events in its
workplace and has responded reasonably based
on that knowledge. In essence a duty of care.
• Negligent hiring
• Negligent retention
• Negligent Supervision
Negligent Hiring
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More developed in the US but has
been made in Canada
An employer may have “hired
negligently” where a person with
known propensities for violence should
have been discovered.
– Reference checks, personal interviews,
security checks
Negligent Retention
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A claim may arise where an employer
continues to employ an employee,
despite the fact that the employer
knew or ought to have known of
the employee’s history or
propensity for violence, and that the
employee engages in a violent act.
Negligent Supervision
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Often referred to in the US.
The employer can be held liable for
negligently retaining an employee, such
as an supervisor, whom they were
aware had a propensity for violence.
Statutory Liability
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Occupier’s Liability Act
– People who are in control over land
must ensure that their premises are
safe for persons who may be reasonably
expected to enter.
– There are a number of security steps
that can mitigate the risk - lighting,
intercom, alarm systems, electronic
access, ID tags, single reception, etc.
Human Rights Legislation
Every Canadian jurisdiction also
has Human Rights legislation that
protects each of us against
discrimination and harassment.
Some companies have specific
policies regarding harassment
and fair work practices.
The Human Rights policy may be
integrated into your workplace
violence prevention policy or it
may stand alone.
OH&S Legislation
Every Canadian jurisdiction
(provincial/territorial/federal)
has its own Occupational
Health and Safety legislation.
This legislation is intended to
protect all employees against
hazards on the job, including
workplace violence.
Workplace Violence Legislation
Federal
Government
Pending
Key Developments
Federal Canada Labour Code
Regulations, December, 2007
•
• Ontario Bill 29, December, 2007
Bill 168, April, 2009
Canada Labour Code II
Regulations
“Any action , conduct, threat or gesture
of a person towards an employee in
their workplace that can reasonably be
expected to cause harm, injury or
illness to that employee”
COHS Regulations
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Employer must assess and identify
factors that contribute to workplace
violence.
Past experience
Similar workplaces
Reports of violent incidents
Measures currently in place
COHS Regulations
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Develop, establish & post a Policy
regarding workplace violence.
Commitment to a safe workplace
Dedicate resources to address violence
including bullying and teasing.
Communicate factors that might
contribute to workplace violence
Assist victimized employees
COHS Regulations
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Once a policy in place, the employer
must establish systematic controls
90 days after the risk assessment
Prevention measures may include
workplace design and processes
Reporting/Investigation
Training
Reviewed every 3 years
The Criminal Code
Some acts of violence fall under the Criminal Code
just because they happened in a workplace does
not change this fact. The Criminal Code covers acts
of violence such as:
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Criminal harassment
Uttering threats
Hostage taking
Sexual assault
Assault
Murder
Bill 168
• First reading, April 20, 2009
•To protect workers from both physical
violence and harassment
• Noteworthy: “Domestic Violence”, “Right to
Refuse Work”, “Duty to Warn” “Risk
Assessment” “Reporting of Violence to MOL”.
“Accountability under the OHSA”
Status of Bill 168
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Second reading under way
MOL is very committed to its passage
Unclear when it will pass
Will become law 6 months after Royal
Assent
Who Bill Applies To
Workplaces with more than 5
employees unless inspector orders
otherwise.
Bill 168 ( Employer Responsibility)
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Policy (posted at a conspicuous place)
Assess and identify risks
Prevention measures and procedures
Reporting/Communicate procedures and
appropriate investigative procedures
Copy of risk assessment to the JHSC
Training obligation
Definition of Workplace
Violence
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“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
could cause physical injury to the
worker”
Definition of workplace
Violence
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Does not cover threats
Unintentional force could be
considered “Workplace violence”
Covers acts of violence by members of
the public against employees.
Definition of Workplace
Harassment
“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”
Key Features of Harassment
Definition
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Not tied to prohibited grounds under
the Human Rights Code
Could be applied to a wide range of
conduct
Subjective in scope
Policy Requirements
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In writing
Posted in conspicuous place in the
workplace if there are 5 or more
employees in the workplace
Review” as often as is necessary, but
at least annually”
Workplace Violence
Assessment
Considerations to take into account:
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Similar workplaces
Circumstances specific to your
workplace
Other elements prescribed by
regulation
Workplace Violence
Assessment
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Must advise the JHSC of the results in
writing
Reassess as often as is necessary to
ensure that the related policy and
program continue to protect workers
Required elements of a
Workplace Violence Program
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To control the identified risks
For summoning immediate assistance
when workplace violence occurs or is
likely to occur
For workers to report incidents
Set how the employer will investigate
and deal with incidents and complaints
Duties to Inform and Instruct
Employees
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As “appropriate” on the contents of
the policy and program
To provide information – including
personal information – related to a risk
of workplace violence if:
– Expected to encounter the person in the course
of their work
– Risk is likely to expose worker to physical injury
Limit on Disclosure
Not to disclose more personal
information in the circumstances than
is “reasonably necessary” to protect
the worker from physical injury
Duties to Inform and Instruct
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Part of the general duty on employer
to inform, instruct and supervise a
worker under s.25(2)(a) of the OHSA
Duty to advise re workplace violence
risks also applies to supervisors.
Domestic Violence
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Duty triggered if the employer
becomes aware (or ought to become
aware) that domestic violence will
likely expose a worker to physical
injury in the workplace
Take every precaution reasonable in
the circumstances for the protection of
the worker
Required Elements of a
Workplace Harassment Program
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Measures and procedures for workers
to report incidents of workplace
harassment
Set out how the employer will
investigate and deal with incidents and
complaints
Duty to Inform and Instruct
Employer must provide information
and instruction that is appropriate for
the worker
Work Refusals
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Employees will have the right to refuse
work if workplace violence is likely to
endanger himself or herself
No right to refuse work because of
harassment
Work Refusal Process
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Must report to supervisor or employer
Employer must investigate forthwith in
presence of a JHSC member or a
worker selected by the union or the
workers
Worker to remain in a safe place near
work station pending investigation
Work Refusal Process
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If the worker continues to refuse MOL
is to be called
MOL will investigate and decide if
workplace violence is likely to
endanger the worker
Worker to remain in a safe place
pending the investigation
Enforcement
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MOL is to release guidelines in regard
to how provisions of Bill 168 will be
enforced and applied
Much will depend on the training given
to inspectors (currently underway)
Enforcement Questions
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Will there be a “blitz”?
How far will inspectors go to review
violence assessments?
How much detail will the policies and
programs need to contain?
Will noncompliance with the policy and
program requirements result in higher
fines or civil liability?
Employer Obligations: Workplace
Harassment Prevention
The development and implementation of a policy
and prevention program with respect to workplace
harassment.
At a minimum:
a. Procedures to report incidents of harassment
b. Procedures defining how the employer will
investigate and address incidents and complaints of
workplace harassment.
Note…
It is noteworthy that the Bill contemplates an
obligation to investigate “complaints” and
“incidents”. This suggests the employer obligation
to investigate and address harassment is not limited
to responding to complaints. The additional word
“incidents” suggests a broader, more proactive
obligation.
Employer Responsibility for
Domestic Violence
If the employer is aware or “ought reasonably
to be aware” that a domestic violence matter
could expose a worker to physical injury, the
employer will be required to take reasonable
precautions for the protection of the worker.
Right to Refuse to Work Where
Risk of Violence
Right to Refuse to Work Where Risk of Violence
The Bill will extend the right to refuse to
work where workplace violence or the
risk of violence is likely to endanger a
worker
Your Road Map to Prevention
Policy
Hazard Assessment
Training & Education
Incident Follow-Up
Victim
Assistance
Continuous
Program Review
Emergency
Response Planning
Prevention
Measures
Reporting & Investigation
Workplace Violence
Prevention Policy
Every organization
should have a workplace
violence prevention
policy that is jointly
developed by
management and
employees.
This document is the
foundation of your
violence prevention
program.
Prevention Policy
Violence Prevention Policy
Violence Prevention Policy should
• Communicate
your organization’s commitment to
preventing workplace violence
• Provide an overview of your violence prevention
program
• Establish clear standards of behaviour
• Apply to all employees, managers, contractors
and clients (e.g. customers, patients, students)
Hazard/Risk Assessment
To effectively prevent
workplace violence you
need to have a good
understanding of workplace
violence risk factors.
Your workplace specific
hazard assessment will
build on this understanding
and must include input from
both management and
employees.
Hazard
Assessment
The Importance of “Risk”
Assessment
A comprehensive risk/hazard
assessment is the foundation on which
to develop a workplace specific
violence prevention program while
ensuring legislative compliance.
It is a logical starting point
The Nature of “Risk”
Two components when thinking of risk assessment
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The risk associated with an individual who
may be potentially aggressive
The organizational risks relating to design,
work processes, etc.
History of Violence in your
Workplace
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Some form of survey of employees at all
levels of the organization
Consult relevant internal documents and
reports
Identify risk factors in your workplace
Inspect the workplace
Workplace Trends in Similar
Organizations
Obtain information from relevant sources such as:
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Insurer
WSIB
Occupational, Health & Safety
enforcement agency
Local police (security)
Union
Risk Assessment
Employee Interviews
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Employee Interviews:
– Interview representative cross-section of
employees/management
– Interviews should be done on a
confidential basis
– Consistent questions
Risk Assessment
Work Site Audit
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Review of physical facilities
Conduct observational tours of the
workplace
Look for environmental risk factors (exits,
barriers, ID, etc.)
Utilize a risk identification checklist
Risk Assessment
Work Site Audit
Categories to include on a risk assessment checklist:
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Access control
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Escape opportunities
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Visibility
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Security and surveillance systems
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Parking areas, exterior, building perimeter
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Cash handling (if applicable)
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Remote work/work alone (if applicable)
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Health care and community sector (if applicable)
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Service sector (if applicable)
Prevention: The Next Step
Your hazard/risk assessment will
help identify the most significant
concerns in your organization.
The next step is to develop specific
measures that will eliminate or
minimize these hazards
Before Launching Prevention
measures, consider:
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Communicating the results of your
assessment and the prevention plan
Explain the hazards identified
Describe the changes
Explain the reason behind the identified
change
Emphasize the positive and preventive
aspects of your program
Developing Preventive
Measures
Your hazard assessment will identify the most
significant concerns for your organization.
The next step is to develop specific
measures that will eliminate or
minimize these hazards.
Preventive measures include training
and educating employees about
workplace violence, as well as making
improvements or changes to your
workplace.
Prevention
Measures
Developing Preventive Measures
When developing preventive measures, you should
consider:
Workplace design – includes the physical lay-out of the
workplace and the use of signs, locks or physical barriers, lighting
and electronic surveillance.
Administrative practices - decisions you make about how
you do business, such as hours of operation and staffing levels.
Work practices - safe-guards you take while you are actually
doing the job.
Reporting & Investigating
Workplace violence is
frequently under
reported.
Every workplace
should have a clearly
defined system set up
for the reporting,
recording and
investigating incidents
or possible incidents of
violence.
Reporting &
Investigation
Emergency Response Planning
From an both an personal and
organizational perspective, it is
essential that you have specific
plans in place ahead of time that
clearly outline how to respond to
a serious incident.
The plan should be thorough
enough to deal with most
incidents, but easy enough to
understand and remember.
Emergency
Response
Planning
Victim Assistance
In the aftermath of an
incident of workplace
violence, traumatized
people may require
emotional and medical
support.
Victim
Assistance
Incident Follow-up
Incident follow-up is part
of your ongoing efforts to
assess hazards and
improve prevention and
response strategies
Incident follow-up occurs
some time after the
incident has been
investigated and after
recommendations for
prevention have been
made. It involves taking a
second look at the
situation
Incident
Follow-Up
Training & Education
Education and training are
a very important part of
Training &
any violence prevention
Education
program.
The exact content and
type of training necessary
will depend on the results
of your workplace hazard
assessment and your
workplace-specific
prevention program.
Program Review
Program review should occur at least
annually … and more often than that if
any of the following situations apply:
Your organization has
experienced an increase in violent
incidents
Your organization has undergone
a significant change (e.g.
relocation, addition of new shifts, a
significant change in business
circumstances)
There have been legislative
changes that affect your
organization
Program
Review
Where to From Here…
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Violence in the Workplace: Prevention Guide –
Canadian Centre for Occupational Health & Safety –
1-800-668-4284
Violence in the Workplace, Eric Roher,
Carswell Publishing – 1-800-387-5164
Human Resources Guide to Workplace
Violence, Norman Keith, Canada Law Book
Civil Liability for Sexual Abuse & Violence in
Canada, Elizabeth Grace, Butterworths
Any of these overheads –
gfrench@rogers.com
Overheads
gfrench@rogers.com