bill 168 violence in the workplace

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About our presenter…

Long-time educator, activist and lawyer, Zahra Dhanani is the Legal Director for the Metropolitan Action Committee on Violence Against Women and Children (METRAC), an agency that ensures access to justice for women, youth and children facing the threat of violence.

METRAC’s Workplace Justice Series

Bill 168: Ontario's New Legislation on

Harassment and Violence in the Workplace

Presented by

Zahra DhananiLegal Director, Justice Program

"Safer for Women, Safer for Everyone"

METRAC’S Workplace Justice Series

Domestic Workers & Live-inCaregivers Experiencing

Workplace Sexual Violence and Harassment

Workplace Sexual Violence& Harassment

METRAC’S Workplace Justice Series METRAC’S Workplace Justice Series

Women Migrant Farm WorkersExperiencing Workplace

Sexual Violence and Harassment


Women Temporary Help AgencyEmployees Experiencing

WorkplaceSexual Violence and Harassment


Women Health Care WorkersExperiencing Workplace

and Harassment


Exotic Dancers ExperiencingWorkplace Sexual Violence

and Harassment

Just Legal Information…Sorry!

I CAN try and answer general legal

information questions.

I CANNOT give advice on individual cases.



Context: Violence at Work

90% of women working outside of the home will experience sexual harassment at some point in their work.

70% of individuals suffering from DV are victimized at work (harassing phone calls, showing up at work)

Serious Issue “There is a growing world wide concern that violence is one of the most serious Occupational Hazards of the 21st century.”

Action taken only when there is a physical incident. Something that builds and earlier signs exist. Not an individual issue, rooted in systems. This is a Gendered Issue: Lori Dupont/Theresa Vince

Legislative Framework: Workplace Issues

Ontario Human Rights CodeOccupational Health and Safety ActEmployment Standards ActWorkers Compensation ActWorkplace Safety and Insurance ActCanada Labour ActCCC, IRPA, etc.


Canada’s Labour Act, Canadian /Ontario Human Rights Commission….Harassment:

Preparing appropriate policies;Monitoring their effectiveness;Updating them as required;Ensuring all employees are aware of

the policies; and Providing anti-harassment training* Canada Labour Code: Has specific language on sexual

harassment: employer obligation to make sure employees know how to bring the harrassment to their attention


Workplace Sexual Violence and Harassment

Sexual Harassment does not have to be sexual. It also includes harassment that occurs because you are a woman. Making stereotypical comments about a person’s gender can be a form of sexual harassment.

Often a pattern of behavior over a period of time. Can include: Degrading words, pictures, objects or

gestures, physical contact and sexual demands. Has largely been dealt with under Human Rights

Codes and not Occupational Health and Safety Act.

However, high profile deaths in workplaces have lead to demands for legislation with more force on the issue.


Bill 168: 14 Year Chronology of Legal ChangeCompilation by Michelle Schryer: Chatham-Kent Sexual Assault Support Centre

June 2, 1996: Theresa Vince murdered at work by her Supervisor who then killed himself (SEARS knew about the Sexual Harrassment for over 1 ½ yrs)

November, 1997: Inquest into the Murder of Theresa Vince

24 recommendations: (1) Occupational Health and Safety Act needs to be utilized.


Cont’d…

Spring 1998: Should Sexual Harrasment be included in the OHSA?

June, 2001: Bill 78 (died) May, 2003: Bill 55 (died)October, 2004: Bill 126 (died)November, 2005: LORI DUPONT

murderedNovember, 2005: Bill 35December, 2005: Bill 45


Cont’d…..

December, 2007: Dupont Inquest lead to 26 reccommendations.

December, 2007: Bill 29 (died)

December, 2009: Bill 168

June 15, 2010: Comes into effect"Safer for Women, Safer for Everyone"

Bill 168: Definitions

Subsection 1(1) of the OHSA is amended by adding: Workplace Harassment is defined as: 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 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


Bill 168: Important Notes

Employers are required to take proactive measures in regards to actions that meet the above criteria.

The definition of workplace harassment is not limited to the prohibited grounds within the Human Rights Code.

Definition of workplace violence may lead to claims of psychological harm.


Bill 168: At a Glance

The proposed legislation will require employers to develop: Violence and harassment policies and programs Employee reporting procedure (incidents, threats and complaints) Incident investigation procedure Emergency response procedure (violence only) Process to deal with complaints, incidents and threats Employers are required to complete a risk assessment of violence

hazards that may arise from the nature of the workplace, the type of work or the conditions of work before developing a program.

The ministry’s tag line for this Bill on its communications material is: “Violence and harassment have no place in the workplace.”


Policies: s. 32.0.1

Prepare written policies dealing with workplace violence and harassment. In light of the new definitions, existing policies will need to be modified.

Review the policies as often as possible, but AT LEAST annually.

Posted Conspicuously! (This does not apply if the number of employees is 5 or fewer)


WORKPLACE VIOLENCE PREVENTION PROGRAM: s. 32.0.2 and s. 32.0.6

Employers are required to develop a program that supports their

policies to address instances of workplace violence. The

program must include the following: Measures for immediate assistance where

violence occurs Reporting procedures Investigative procedures Remedies


RISK ASSESSMENT AND REASSESSMENTSs.32.0.3

Employers SHALL conduct assessments regarding the risk of violence at work.

Employers SHALL advise the health and safety/ representative and employees of the results of these assessments and reassessments


DOMESTIC VIOLENCEs. 32.0.4

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.

S.32.0.5 Sets out employer duties"Safer for Women, Safer for Everyone"

Enforcement under OHSA

The law is enforced through the Ministry of Labour

An order is made by an Inspector instructing the employer to make any necessary changes to the workplace in light of safety considerations.

The Inspector is granted broad powers to perform inspections, including the power to obtain a warrant without notice to enter the premises, and to order an inspection.

Any person subject to an order from the Inspector may appeal through the Ontario Labour Relations Board (the Board).


PERSONS WITH A HISTORY OF VIOLENT BEHAVIOURs. 32.0.5 (3)

Employers are now obliged to provide information to employees pertaining to the violent histories of their co-workers where there may be a risk of violence


Safe Place: s. 43 (5)

Until an investigation is complete, the employee shall remain in a “safe place” as near as reasonably possible to his or her work station.

Be available to the employer or supervisor for the purposes of the investigation.


REFUSAL TO WORK

Where an employee has reason to believe that there is a potential for violence in the workplace, he or she may refuse to work.

Workplace Violence was not included in the right to refuse work pre-Bill 168

Violent Behavior or threat of violent behavior was not considered as “inherent to the workers work”. (OHSA test)


OHSA: Treatment of Sexual Harassment and Workplace Violence pre-Bill 168

The Board has generally been concerned with the issue of duplication, as it feels that sexual harassment is properly and more effectively addressed by the Human Rights Commission and Code.


OHSA: Treatment of Sexual Harassment and Workplace Violence

Where the Board agrees that sexual harassment could form a successful complaint under the OHSA it also seems to set strict limits.


2 Instructive Cases under OHSA

Lyndhurst Hospital [1996] O.L.R.B. Rep. May/June 456 (QL)

Meridian Magnesium Products Limited [1996] O.L.R.B. Rep. November/December 964 (QL).


Findings

In both cases, counsel for the employer urged the Board to refuse jurisdiction over the cases on the ground that a claim for sexual harassment was not part of the reach of the OHSA and because the Human Rights Code was specifically set out to deal with matters such as sexual harassment


….

In Lyndhurst Hospital counsel for the employer argued that while sexual harassment was not acceptable in the workplace, it was not covered under the OHSA and a legislative amendment would be required to properly include it within the scope of the law. Counsel argued that the OHSA was intended to address threats to physical safety and that if the Board accepted the proposition that sexual harassment was covered by the OHSA then there would be an obligation placed on employers to warn employees about the potential hazard presented by harassers; this suggestion was characterized by the employer as

an absurd result.


Arguments of Counsel

Counsel for the Employers put forward:Open up a Floodgate of Sexual Harassment claims

Severe Duplication IssueSexual Harassment is discrimination but it is not violence. It is not a safety issue.


Findings

Both cases were dismissed:DuplicationSexual Harassment not covered under

the OHSA as it is not a “safety” issue.


Training Programs: OHSA

Border Steel Ltd. v. Workers of Border Steel Ltd.

Skyjack Inc. v. OntarioBusiness Case trumps SafetyInspector had concerns regarding

worker safety, but was unable to address them with the tools available


METRAC Findings

Marginalized Workers


Key Workplace related issues:

Workplace harassment/violence is often accepted as part of the job in some sectors such as health care and exotic dancing and therefore incidents of violence are not reported.

Lack of permanent legal immigration status forces women to work under precarious conditions and from reporting incidents of sexual violence and harassment.

The organization and structure of temporary employment contribute to women’s inequality and uneven power relations.


Cont’d ……Barriers to Justice

Disabled women, Foreign, immigrant and refugee women workers more vulnerable due to:

● fear of job loss

● lack of access to information and

● linguistically/culturally accessible resources

Discrimination in the workplace environment clearly increases chances of other forms of

Workplace violence and harassment.

Women workers in precarious work situations often face other forms of discrimination,including:

● unequal pay, ● health and environmental hazards,● poor living conditions,

● farm/factory accidents and, ● chemical poisoning.


Potential Responses


Workplace harassment and violence:1.Keep a journal of what happens and tell your employer/supervisor 2. Make a complaint to the Ontario Human Rights Commission

3. Contact the Ministry of Labor Inspectors

4. File a complaint under the Employment Standards Act

5. Apply for compensation under the Compensation for Victims of Crime Act

6. File a civil suit at a Small Claims Court


Action Plan for dealing with sexual/physical assault:

1. Go to a safe place

2. Talk to a friend or call a sexual assault/rape crisis centre

3. Decide whether to report the assault or not

4. If a report is made to police, they will need evidence


Identified responses might not be accessible for the most marginalized women because:

Human Rights Commission may not review a case if a worker does not have a legal status in Canada.

Foreign workers who report sexual violence or harassment are at risk of being fired which could affect their immigration status

If the police find out a worker does not have legal status, they might still report the worker to immigration authorities. Toronto – “Don’t Ask” Policy is not a “Don’t Tell” Policy

Workers without legal status should consult with a lawyer/legal clinic before:

● filing a civil suit ● applying for compensation

If you would like to order METRAC’s Workplace Justice Series or other METRAC

materials, please contact METRAC at

Tel: (416) 392-3135E-mail: [email protected]

For online resources, visit www.metrac.org www.owjn.org

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