Understanding Employer Obligations Under Bill 168

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Toronto Head Office:
350 Bay Street
Suite 1000
Toronto, Ontario
M5H 2S6
Mississauga Office:
2 Robert Speck Pkwy.
Suite 750
Mississauga, Ontario
L4Z 1H8
T: 416.861.9065
F: 416.361.0993
Understanding Employer
Obligations Under Bill 168
Presented by: Lior Samfiru and Chuck Tahirali
Prepared for: Breakfast Seminar Regarding Bill 168

2
Bill 168: Addressing Workplace
Violence and Harassment
 Topics:
1. What does Bill 168 do and how has the legal landscape
changed?
2. Conducting Risk Assessments and identifying areas to protect
employees
3. Changes to Employer’s obligations re domestic violence, work
refusals and training of employees
4. Drafting, implementing and enforcing new workplace policies
and programs re violence and harassment
5. Conducting a workplace investigation
6. Employer’s legal exposure from workplace
violence/harassment incidents
7. Questions

3
Scope of the Problem
2005 Statistics Canada Survey
 17% of all incidents of violence in Canada, including
physical assault, sexual assault and robbery, happen in
the workplace
 71% of these workplace incidents are classified as
physical assaults, and 24% as sexual assaults
 There is an average of 14 Canadian workplace homicides
each year
 46% of workplace violence incidents involve consumption
of alcohol or drugs

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Legislation Addressing
Workplace Violence/Harassment
 Human rights law
 Common law
 Occupational health and safety (OHS) law
 Criminal law

Other Jurisdictions
 British Columbia
 Alberta
 Saskatchewan
 Manitoba
 Quebec (psychological harassment only)
 Nova Scotia
 Prince Edward Island
 Newfoundland & Labrador
 Federal Government (Canada Labour Code)

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Before Bill 168
 Limited obligations on employers to proactively
prevent workplace violence/harassment
 Only obligation was to act as a reasonable
employer in the face of a known problem, i.e.
not to be negligent
 Little relevance to the type of business
 Employee would have to establish that
employer knew of problem but failed to take
appropriate remedy. This is very difficult to
establish

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After Bill 168
 Employer has duty to proactively protect
employees from workplace violence and
harassment and cannot be reactive
 May be liable, even if not negligent
 The type of business may increase risk to
employees which results in additional obligations
on employers
 If employee suffers loss or damages, must only
show that employer failed to comply with its
obligations under Bill 168.

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Occupational Health and Safety Act
 Who enforces the Act?
- Ministry of Labour Inspectors
 Inspectors have broad powers that include inspecting any
workplace, investigating any potentially hazardous situation and
work refusal, ensuring compliance with the Act and regulations
and initiating prosecutions.
 Employers, supervisors and workers must assist and co-operate
with inspectors
 May issue orders and/or charges against individuals and/or
corporations for not complying with the Act
 Significant penalties if found guilty
 Individuals = $25,000 per offence and/or 12 months in jail
 Corporations = $500,000 per offence

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Bill 168 Components
 Defines Workplace Violence and Harassment
 Policy Requirements
 Risk Assessment Requirements
 Domestic Violence Provision
 Information and Instruction
 Incident Reporting
 Auditing Program

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Bill 168 Components
-cont’d-
Summary of Employer Responsibilities:
 Assessments to measure the risk of workplace violence –involves
looking at incidents within the workplace and analyzing them to
determine the greatest risks for violence in the workplace
 Develop written and posted policy and procedures for addressing
violence and harassment in the workplace as defined in the Act. Policy
should define violence and harassment and set out procedures for
employees to follow in the event of any contravention of the policy
 Development of a program to implement the policy and procedures
based on the results of the risk assessment. This will include employee
training on the policy and procedures as well as instructions for
employees on their right to refusal of work
 Review and evaluation on the effectiveness of the policy and procedures
at least annually

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Workplace Violence Defined
 “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,
 A statement or behavior 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.”
Definition focuses on the use or the threatened use, of physical force.
There is no requirement that the exercise of physical force is
intended to injure. This is intended to address the fact that certain
individuals with psychological conditions or disabilities may not
intend to injure, but may nonetheless exercise physical force
against workers. In other words, intentional and unintentional
physical force is considered workplace violence.

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Workplace Harassment Defined
“A course of vexatious conduct or comment against a worker in a
workplace that is known or ought reasonably to be known to be
unwelcome.”
Definition of workplace harassment in Bill 168 is broader than the
definition of harassment under the Human Rights Code as it is not
limited to prohibited grounds of discrimination such as race, sex, etc

Expertise Required?
I am not an expert in workplace violence. How
can I complete a violence risk assessment?
Employers are not expected to be experts in
workplace violence. However, you are expected to
have and maintain a general knowledge of the
level of violence within your own industry and
general location.
SOURCE: Reference Guide to the Violence in the Workplace Regulations,
Occupational Health And Safety Division, Government of Nova Scotia

Scope of Assessment
Is the Employer required to assess the risks of
violence between individual workers?
The Occupational Health and Safety Act does not require an
employer to proactively assess the risks of violence between
individual workers. It could be difficult for the employer to
predict when violence may occur between individual workers.
However, a review of incidents or threats of violence from all
sources may indicate the origins of workplace violence and
likelihood of violence between workers at a particular
workplace.
SOURCE: Occupational Health and Safety Branch, Ontario Ministry of Labour

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Written or Unwritten?
 Subsection 32.0.3 (3) of the Occupational Health and
Safety Act states:
(3) An employer shall,
(a) advise the committee or a health and safety
representative, if any, of the results of the assessment,
and provide a copy if the assessment is in writing;
and
(b) if there is no committee or health and safety
representative, advise the workers of the results of the
assessment and, if the assessment is in writing,
provide copies on request or advise the workers how to
obtain copies.

Risk Assessment
 You are not required to be an “expert”
 You are not required to assess the risks for violence
between individual employees
 You are expected to assess the risks for violence
specific to your workplace
 This may include a review of any information you have
regarding incidents of violence in your workplace
 You may be expected to have and apply a general
knowledge of the potential sources of violence in your
general industry/sector or location

Role for Joint Health and Safety
Committee or Rep
 You are expected to report the results of the
risk assessment to the Joint Health and Safety
Committee (or to the H&S Rep, if no
committee or to employees-at-large if not Rep)
 Consider, as best practice, involving JHSC
from the outset

Risk Assessment
 You are expected to assess the risks of
workplace violence that may arise from,
 the nature of the workplace;
 the type of work; and
 the conditions of work.

Risk Assessment
The risk assessment must take into account:
 circumstances specific to the workplace;
 circumstances that would be common to
similar workplaces; and
 other prescribed elements (currently there
are none).

Specific high risk factors accepted
as predictors of violence
 Working with the public
 Direct contact with customers, clients, patients
 High risk activities
 Handling money or valuables, dispensing drugs, serving
alcohol
 Location
 High crime area, office tower, permeable workplace
 High risk industry
 Health care, social services, retail, security, hospitality,
financial services

Ministry of Labour Guidelines
 Activities or circumstances that may increase the risk of
workplace violence include:
 Handling cash;
 Protecting or securing valuables;
 Transporting people and goods;
 Mobile workplace (e.g., a vehicle);
 Public or community contact;
 Working with unstable or volatile people;
 Working alone or with just a few people; and
 Working late nights or very early mornings.

What is a Risk Assessment?
 A risk assessment is a step-by-step process to:
 Identify factors and situations that could potentially
contribute to workplace violence;
 Determine what control and prevention measures are
already in place;
 Collect information to determine the risk of future violent
incidents; and
 Using information collected to eliminate or minimize those
risks deemed as unacceptable.

5 Steps to Risk Assessment
 Gather background information
 Previous experience with violence may be best predictor of
future violence
 Obtain employee input
 Violence and harassment under-reported
 Inspect/audit the workplace
 Analyze the information gathered and obtained
 To determine the presence of conditions, operations or
situations that might place workers at risk of violent incidents
 Record and communicate results to JHSC (if not
already involved)

Re-assess Risk
 Re-assessments are required as often as is
necessary to protect workers from workplace
violence.
 We recommend that re-assessments be
conducted after any incident, as well as
annually after your annual policies review.

Four Major Sources of
Workplace Violence
 Worker-on-worker (between co-workers or
from former employee)
 Those with legitimate relationship to
organization (customers, clients, patients)
 Strangers, no legitimate relationship to
organization (criminals, random violence)
 Those with personal connection to
intended victim (e.g., domestic violence
that manifests itself in the workplace)

Domestic Violence
 Under section 32.0.4 of the Ontario Occupational
Health and Safety Act, if an employer becomes
aware or ought reasonably to be aware that
domestic violence that is likely to expose a worker
to physical injury may occur in the workplace, the
employer must take every reasonable precaution
to protect the worker.

Selected Statistics
(Source: Occupational Health & Safety Council of Ontario)
 The victims were female in 92 per cent Between 2002 and 2007,
Ontario reviewed 230 domestic violence-related deaths (142
women, 23 children and 65 men).
 Most male deaths were abuser suicides after killing or attempting to
kill their partners or ex-partners.
 In 92 percent of the cases, victims were female; the abusers male.
 The most common risk factor in domestic homicide was actual or
pending separation.
 Research suggests that 70 per cent of domestic violence victims are
also abused at work.
 54% of domestic violence victims miss 3 or more days of work a
month.

Who Do Victims Tell At Work?
(Source: Healthcare Domestic Violence Network of
Sacramento County, CA)
 66% of victims tell someone at work:
 Immediate supervisor (59%)
 Co-worker (46%)
 Another supervisor (6%)
 Human resource professional (1%)
 Victims don’t disclose because:
 They consider it to be a personal issue
 Feel embarrassed or ashamed
 Do not believe people at work can be trusted
 Fear of losing job or other negative consequences
 Partner works in same workplace

Domestic Violence
 The term “domestic violence” is not defined in the Act.
 Guidelines issued by the Ontario Ministry of Labour
suggest that domestic violence is not limited to violence
committed by a current or former spouse or intimate
partner, but may extend to include any personal
relationship –
A person who has a personal relationship with a worker –
such as a spouse or former spouse, current or former
intimate partner or a family member – may physically
harm, or attempt or threaten to physically harm, that
worker at work. In these situations, domestic violence is
considered workplace violence.

Domestic Violence
 Policies and programs should clearly stipulate
that employees who believe they are at risk of
violence in the workplace, including domestic
violence, must advise the employer.
 Supervisors and managers may require
training to recognize the signs of domestic
violence most likely to be observed in the
workplace and made aware of their
responsibilities in this regard.

Signs of Domestic Violence
 Signs that domestic violence may be spilling over into the
workplace may include:
 Employee receives frequent personal calls; demeanour
changes during or after call.
 Employee receives large volume of personal e-mails from
the same person.
 Spouse/family member shows up at workplace pestering
co-workers, asking questions about the employee or the
employee’s whereabouts or activities or tries to enlist
cooperation of co-workers to gather information about
employee.
 Spouse/family member displays angry, jealous or abusive
behaviour at workplace, in parking lot or during company
social function.

Elements of an Individual Safety Plan
 Will depend on particular circumstances, but may include:
 Notifying reception of the identity/description (photo) of the
individual, with instructions not to admit (and call police).
 Moving targeted employee’s workstation to more secure area or,
if warranted, re-assign to different role or work location.
 Removing a targeted employee’s name from the company
directories, office door, etc.; allow calls to be screened.
 Pre-program emergency numbers into phones.
 Providing an escort to/from vehicle; assign closer parking spot.
 Allow for changes in working hours or flexible hours, time off to
attend court, lawyer, etc. Coordinate with police, if involved.
 Develop a code word or phrase that employee can use to alert a
designed contact of a potential or emerging situation.

Legal Duties: Employers and
Supervisors
 Prior to passage of Bill 168, various legal duties
were imposed on Employers and supervisors,
including the duty to ensure employees work in
compliance with the Act and to take all precautions
reasonably necessary to protect the health and
safety of the worker.
 All of these duties apply, as appropriate, with
respect to workplace violence

Information, Training and Instruction
 In addition to these pre-existing duties, as a result
of Bill 168, the Act now explicitly requires that:
 An employer shall provide a worker with information
and instruction that is appropriate for the worker on
the contents of:
 the policy and program with respect to workplace
violence
 the policy and program with respect to workplace
harassment

 Merely posting policies in the workplace or providing
copies to affected employees is not sufficient to satisfy
the requirement of providing instruction.
 Specific training and information sessions are required,
appropriate to the worker, which may include giving
consideration to languages spoken in the workplace
other than English.
 In some workplaces, risk-specific training may be
required, e.g., with regards to handling money, dealing
with volatile clients, working in or travelling to high
crime areas, and so on.

 All workers should:
 know how to summon immediate assistance;
 know how to report incidents of workplace violence to the
employer or supervisor;
 know how the employer will investigate and deal with
incidents, threats or complaints;
 know, understand and be able to carry out the measures and
procedures that are in place to protect them from workplace
violence; and
 be able to carry out any other procedures that are part of
their employers programs.
Source: Ministry of Labour Guidelines

Persons with a History of
Violent Behaviour
 The duties of Employers and Supervisors extends to 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, but only if,
 the worker can be expected to encounter that person in
the course of his or her work; and
 the risk of workplace violence is likely to expose the
worker to physical injury.
 No employer or supervisor shall disclose more personal
information in the circumstances than is reasonably
necessary to protect the worker from injury.

Violent Behaviour
 “Personal information” could include the name
of an individual with a history of violent
behaviour.
 In order for an employer or a supervisor to
discharge these statutory duties with regards
to a person with a history of violent behaviour,
it may be necessary to disclose the name of
the individual in question. Indeed, it may be
unavoidable.

Not a “Witch Hunt”
 “Due diligence” does not extend to compel an
employer to make inquiries into the backgrounds of
employees in the absence of a reasonable and
compelling reason to do so.
 This provision is not intended to be pre-emptive in
nature, i.e., to compel you to pry into employee’s
backgrounds in order to determine whether there is
a history of violence which, in the normal course,
you would be completely unaware.

Limited Duty of Disclosure
 Triggered only in very specific circumstances:
 the individual at issue has a history of violent
behaviour;
 other employees can be expected to encounter
this individual, and
 the risk is such that physical injury is possible.
 A person may have a rather odious background,
including a criminal record, without triggering the
duty to disclose under the Act.

Violent Behaviour
 Any disclosure of information in order to warn of a risk of violence
must be accurate and limited to specific information necessary to
discharge obligations to workers:
 Be objective, factual and accurate in communicating
concerns
 Avoid opinions, subjective statements, inferences or
innuendo;
 Provide information on a strict need-to-know basis;
 Avoid statements that may be untrue and/or harmful to a
person's reputation;
 The information disclosed should allow workers to identify
the person and, if appropriate, to understand what triggers
his or her aggression.

Right to Refuse Work Due to
Violence or Threat of Violence
 A worker may refuse to work or do particular work where he
or she has reason to believe that,
 any equipment, machine, device or thing the worker is to use or
operate is likely to endanger himself, herself or another worker;
 the physical condition of the workplace or the part thereof in
which he or she works or is to work is likely to endanger himself
or herself;
 workplace violence is likely to endanger himself or herself; or
 any equipment, machine, device or thing he or she is to use or
operate or the physical condition of the workplace or the part
thereof in which he or she works or is to work is in contravention
of this Act or the regulations and such contravention is likely to
endanger himself, herself or another worker.

 Two-stage process
 Two standards for assessing legitimacy of refusal
 First stage = subjective (genuine belief)
 Second stage = objective (would a reasonable
person agree?)
 Fine line between insubordination and legitimate
work refusal
 Worker may not be required to specifically invoke
the Act

 At second stage, Ministry of Labour must be
contacted
 No right to refuse work because of workplace
harassment

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Developing A Policy
 Where more than five workers are regularly
employed at a workplace, Bill 168 requires that
the employer must:
 Prepare a written policy with respect to
workplace violence and workplace harassment
 Review policy as often as needed, but at least
annually
 Post policy

Developing A Policy - cont’d -
 Develop a policy that deals with harassment and violence*
 The policies should include:
 Purpose (to eliminate violence/harassment and ensure safe work
environment)
 A definition of workplace violence and harassment
 An indication that the employer will not tolerate workplace harassment
or workplace violence
 Description of the types of violence and harassment: bullying, sexual
harassment, physical assault, stalking, racial harassment.
 Complaint Procedure (including who will accept complaint)
 identify that there will be consequences for breaches of the policy;
 * Specific reference to jurisdictions other than Ontario and their definitions of
workplace violence and harassment should be considered before the policy
is implemented

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Developing A Policy - cont’d -
 The policy should also include:
 Examples of what could be harassment (e.g. shouting,
profanity, throwing things, embarrassing comments, cyber-
bullying)
 Examples of what is not considered harassment (e.g.
negative performance reviews, disciplinary measures,
requests to work additional time)
 Assurances that all complaints will be kept confidential

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Implementing Harassment Violence
Prevention Policy
1. Reasons employers must make sure policy is
properly implemented:
2. So that all employees know of expectations and
processes
3. Be in a better position to discipline employees
for breach of policy
4. Be in a better position to defend against a claim
for damages resulting from workplace
violence/harassment

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Implementing Policy - cont’d -
 Policy should be circulated to all employees
 Managers should be trained to answer any questions
arising from policy
 Have meetings with all employees (or, with groups of
employees at a time) to introduce the policy and go over
key features of policy
 Have all employees sign a form acknowledging that they
received the policy and have had an opportunity to
review it and ask questions
 Every 2- 3 years circulate another copy of the policy and
have employees sign acknowledgment again
 With respect to new hires: refer to policy in contract of
employment and enclose a copy with job offer. New
employee should sign a separate acknowledgment.

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Violence/Harassment Prevention
Program
 Employer must develop and maintain a program to
implement the harassment policy and the violence policy
 Program shall include written measures and procedures:
– To control risks likely to expose worker to physical injury
– For summoning immediate assistance when workplace
violence occurs or is likely to occur
– The process the employer will utilize to investigate and
deal with incidents and complaints of workplace
harassment
 Program must be reviewed yearly

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Violence/Harassment Prevention
Program
 Program shall include written measures and
procedures:
 For workers to report incidents of workplace violence and
harassment to the employer or supervisor
 On how the employer will investigate and deal with
incidents or complaints of workplace violence and
harassment

Investigations
 Why conduct an investigation?
 Merits of using an external versus an internal
investigator
 Steps to consider prior to starting the investigation

Features of a Proper Investigation
 Complaints must be taken seriously and acted upon
promptly.
 The investigator should be independent and objective.
 The investigator should be properly trained in
investigation techniques.
 If the investigator is an internal investigator, ensure
he/she is neutral to the parties involved in the
complaint.
 The investigator should not be in a position of authority
over any of the parties to the complaint.

 Take complaint seriously and act upon it promptly
 Use an independent, objective and neutral investigator,
ideally experienced in investigation techniques
 Comply with your own internal policies and procedures
 Protect confidentiality to the greatest extent possible
 Proceed quickly, but not too quickly (rule of thumb is to
double expected time)

 Have complainant reduce complaint to writing or obtain
signed statement after initial interview
 Insist on cooperation as a duty of employment
 Interview everyone referred to in the complaint
 Consistent opening comments explaining purpose,
confidentiality
 Give the alleged harasser the opportunity to respond to
every complaint
 Talk to everyone the alleged harasser identifies as
being a witness or having relevant information

 Track to ground any information that comes out of
interviews, review related documents, records
 Go back to witnesses, complainants or alleged
perpetrators to find out response to additional or
contradictory information obtained
 Take detailed notes of all interviews and, as
appropriate, have interviewees review notes or
summary statement and sign as accurate
 Type notes as soon as possible after interview, i.e.,
while memory is fresh

 Allow people to contact investigator after interview if
additional information recalled
 Two interviewers often ideal for several reasons
 Ensure confidentiality (walls have ears). Consider off-
site interviews
 Tour work sites where incidents alleged to have
occurred
 Avoid “if there’s smoke, there’s fire”, both before (bias)
or after (undermine outcome and conclusions)

 Make findings of credibility, if necessary
 Make an objective determination based on balance of
probabilities standard
 Advise participants of right to be free from reprisals and
to file a complaint in the future
 Follow up to ensure no reprisals and proper adjustment
after investigation closed

Disciplining Employees for
Breach of Policy
 Discipline should always be commensurate with offence
 Remember, employer has several forms of discipline
available: warning, suspension, last chance
arrangements, termination
 Be particularly careful in disciplining long-service
employees
 Consider implementing progressive discipline policies
 Discipline must be recorded in writing including
response of employee (even if employee refuses to
sign)
 Disciplinary measures must always outline expectations
 Follow up!
 Remember to maintain privacy of disciplined employee

Disciplining Employees - cont’d -
Terminations:
 For cause: only if very serious incident which will make
continued employment impossible, or if employee
repeat offender
 For cause: remember that may still have to pay
Employment Standards Act entitlements, unless
employee guilty of willful misconduct
 Without cause: may decide to part ways with employee,
despite absence of cause. In this case, it is best not to
get into reason for termination
 Without cause: review contract of employment for
termination clause and seek legal advice; remember, no
such thing as “near cause”

Potential Damages Claims
Constructive Dismissal
 Employer has duty to maintain proper work environment
free of harassment and violence
 Where employer breaches this duty (intentionally or not),
contract of employment deemed violated
 Employee can treat employment as being at an end and
demand severance package
 Bill 168 makes it easier to pursue constructive dismissal
claim because employee does not have to show that
employer failed to react. Would only have to show that
employer did not fully comply with obligations under the
new legislation.

Potential Damages Claims - cont’d -
Infliction of Mental Suffering
 If employee suffers psychological injuries as a result of
harassment or violence, could hold employer liable
 Employee does not have to show that employee was
negligent, just that employer failed to comply with Bill 168
 Potential Damages exposure is significant (Sultz v.
RCMP), could be liable to employee if cannot work again:
general damages for mental suffering, special damages
for past and future loss of income.
 Such claims were rare, but will be easier to establish as a
result of Bill 168

Other Resources
 Ontario Ministry of Labour:
http://www.labour.gov.on.ca/english/hs/pubs/wpvh/index.php
- A Toolbox
http://www.labour.gov.on.ca/english/pdf/wvps_toolbox.pdf
(Includes Suggested Risk Assessment Template)
 Canadian Centre for Occupational Health and Safety:
http://www.ccohs.ca
 Ontario Safety Association for Community and Healthcare:
http://www.hchsa.on.ca
Domestic Violence Doesn’t Stop When Your Worker Arrives at Work:
What Employers Need to Know to Help -
http://www.hchsa.on.ca/products/free_resource.shtml

64
For further information, please
contact:
Lior Samfiru or Chuck Tahirali
Tel: (416) 861-9065
Fax: (416) 361-0993
www.stlawyers.ca
www.coiri.com
Toronto Head Office:
350 Bay Street
Suite 1000
Toronto, Ontario
M5H 2S6
Mississauga Office:
2 Robert Speck Pkwy.
Suite 750
Mississauga, Ontario
L4Z 1H8
Presented by: Lior Samfiru and Chuck Tahirali
Prepared for: Breakfast Seminar Regarding Bill 168
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Understanding Employer Obligations Under Bill 168

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