Just over a year ago, the workplace violence and harassment provisions were added to the Occupational Health and Safety Act. Although there have only been a few cases that deal directly with these new provisions, from the period of June 15, 2011 to March 31, 2011 the Ministry of Labour has reported that there were 600 orders issued pertaining to workplace violence and 1,100 orders issued related to workplace harassment.
Workplace violence and harassment has become an increasingly serious workplace issue. Courts and tribunals have expressed that times are changing and what used to be tolerated in workplaces is no longer acceptable. In a recent decision, Georgia Pacific Canada Inc v. CEPU, Local 192 (Lafleur Grievance), arbitrator Luborski noted that while in the past workplace violence between co-workers was treated less seriously than violence against management, attitudes are changing and have been changing even before the enactment of Bill 168.
In Kingston (City) v CUPE, Local 109, one of the first decisions to apply the Bill 168 provisions, an employee was terminated for uttering death threats to the president of her union. In upholding the employee’s termination, arbitrator Newman stated that uttering words constitutes workplace violence and actual evidence of immediate ability to do physical harm is unnecessary.
Adjudicators have also recognized the limits of these provisions. In Conforti v Investia Services, the Ontario Labour Relations Board (the “Board”) held that the workplace harassment provisions of the Occupational Health and Safety Act are limited in that they only require the employer to create a workplace harassment policy and program, and provide information to the employee as appropriate. If the employer has a policy that complies with the requirements under the legislation, the Board does not likely have the authority to adjudicate complaints from employees pertaining to harassment in the workplace.
It is important for employers to be on top of their obligations under these provisions. Workplace violence is an issue that has recently come to the forefront of labour and employment law. As noted above, even though there have only been a few cases on these issues, the Ministry has conducted a
large volume of inspections and issued multiple orders. As we head into the final month of the year, employers may want to review their workplace violence and harassment policies (which are required to be reviewed annually) and ensure they are up to date and conform to the requirements under the OHSA.
