Bill 168: The Year in Review

February 3, 2012 3:38 pm Views: 570
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Susan Sorensen is a Partner in the Toronto office of Borden Ladner Gervais and practices in the area of labour and employment law.

It has now been over a year since Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) came into force.  So far, there have not been any reported prosecutions dealing with workplace violence or harassment.  However, Ministry statistics make it clear that the new law is being taken seriously. In the period between June 15, 2010 and March 31, 2011, Ministry of Labour Inspectors investigated more than 400 complaints involving workplace violence and more than 1000 complaints involving workplace harassment.  In addition, 600 orders associated with workplace violence and 1100 orders associated with workplace harassment have been issued. So, workplace violence and harassment are clearly on the Ministry’s radar screen.

As a refresher, as of June 15, 2010, most employers in Ontario, including hospitals, were required to: (i) undertake a workplace violence risk assessment; (ii) prepare internal programs and policies aimed at workplace violence and workplace harassment; (iii) create procedures for summoning immediate assistance when workplace violence is imminent or occurring; (iv) create procedures for reporting and investigating complaints of workplace violence or harassment; and (v) provide information and instruction to all staff on the internal programs and policies put in place.

While there have been no reported Ministry of Labour prosecutions dealing with workplace violence or harassment, some adjudicators have commented on the impact of the legislation in a discipline and discharge context.  The trend seems to be toward harsher discipline for acts of workplace violence, in particular. For example, in H.J. Heinz Co. of Canada Ltd. and UFCW, Local 459 (Pursel) (Re), 2011 CLB 1872 a discipline case involving a physical fight between two co-workers, Arbitrator Marcotte commented as follows:

…the enactment of Bill 168 reflects societal concerns about violence in the workplace and in some respects, in counsel’s words, it is a “codification of common sense,” such that its occurrence in the workplace is a serious matter that attracts serious discipline.  By way of engaging in workplace violence on June 11, 2010, it is appropriate that the discipline be greater than had been imposed by the Company prior to Bill 168.

Other arbitrators have emphasized that while violent conduct in the workplace may be grounds for significant discipline in appropriate cases, Bill 168 does not mandate discharge as the appropriate penalty when workplace harassment or violence occurs. Rather, arbitrators are still called upon to weigh all the factors and to properly assess the circumstances to ensure a proportionate disciplinary response.  Nevertheless, in some recent cases, arbitrators have upheld lengthy unpaid suspensions in the magnitude of six (6) months or more for violations of workplace violence policies.

In a very recent case, City of Kingston v. CUPE, Local 109 (2011) CanLII 50313, Arbitrator Newman upheld the discharge of an employee who uttered a death threat to a Union President in a workplace meeting.  While the arbitrator agreed that there was no evidence that the employee intended to make good on her threat, or even that the recipient truly believed that his life was in danger, the arbitrator held that such findings were not necessary in order to conclude that workplace violence had occurred.  Rather, the making of even idle threats of this nature was enough to trigger a serious disciplinary response from the employer.  Coupled with the employee’s lack of remorse and credibility (she denied having issued the threat) her chequered history of outbursts of anger and aggression in the workplace and the fact that the incident occurred very shortly after she had received training on Bill 168, and had attended an anger management program, Arbitrator Newman held that the employee’s dismissal was appropriate.

Addressing the impact of Bill 168, Arbitrator Newman found:
1.    Bill 168 has elevated inappropriate language in the workplace such as death threats into incidents of workplace violence;
2.    Bill 168 requires employers to respond seriously to and to address incidents of violence that are reported to it.  Employers cannot disregard, minimize be indifferent or turn a blind eye to such reports;
3.    Bill 168 requires arbitrators to consider incidents of workplace violence as matters of serious misconduct; and
4.    In considering whether termination is the appropriate disciplinary response for an incident of workplace violence, employers and arbitrators must consider to what extent it is likely that the employee’s misconduct will be repeated?

It is clear therefore that workplace violence and harassment have become a matter of public safety and consciousness.  Accordingly, employees found to have engaged in workplace violence or harassment can expect harsher disciplinary penalties than might otherwise have been imposed before Bill 168 became law, and employers who don’t comply with the legislation may be fined or prosecuted.  Hospitals and hospital staff are not immune from these results and can expect that similar findings would be made in similar circumstances. It will be interesting to see how the law develops further over the coming year.

Article By:

Susan Sorensen

Susan Sorensen is a Partner in the Toronto office of Borden Ladner Gervais and practices in the area of labour and employment law. Susan can be reached at 416.367.6017 or ssorensen@blg.com

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