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Hey! Stop harassing me! 

Bill 168 amendments will help level the playing field for employees

At a time when employers are already under the gun, trimming a ship that’s trying to stay afloat in stressfully competitive times, along comes a new law to add to the burden of responsibility.

On Dec. 9, the Ontario legislature passed Bill 168, which amended the Occupational Health and Safety Act as it pertains to violence and harassment in the workplace. By doing so, the provincial government has stepped up its effort to limit the possibility of mental and physical harm to employees. 

But under the bill, which becomes law on June 15, employers are obligated to draw up and post written policies on workplace violence and harassment, as well as assess their workplace for risks of violence at least once a year. Failure to do so could result in sanctions, particularly if an incident occurs.

For purposes of the bill, workplace violence is defined as either “the exercise of (or attempt to exercise) physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker;” or as “a statement or behaviour that it 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.”
Harassment, meanwhile—one of the amendments to the original law—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.” 

Regardless of the exact wording, Burlington-based labour law specialist John Evans thinks the Liberals should be commended for their forward thinking. “It’s pretty progressive legislation, since the Ontario government’s attempting to legislate beyond the limited protections in the Human Rights Code for harassment—things such as disability, age and sex,” says Evans. “The soft problem used to be for harassment for grounds other than those specified in the Human Rights Code. This legislation fills the gap. From where I sit, as plaintiff’s counsel, it’s a very good thing. As much as everyone doesn’t want to acknowledge it, these types of cases happen all too frequently.”

Evans is talking about bullying, poisoned work environments and other forms of abusive behaviour in the workplace. “You always had the ability to assert your rights over harassment, but it was tricky,” he says. “You had to go to court, which is expensive, which is a big impediment to ensuring basic norms in the workplace. This legislation closes that loophole and allows employees to make complaints and have those complaints investigated.”

Facilitating that process means more complaints 
in the future (and, no doubt, added job postings for Ministry of Labour inspectors), particularly since there’s a wide open interpretation for what constitutes harassment. “But the difficulty isn’t so much in the definition; it’s in applying it to a specific case,” Evans notes. “There are subjective views and objective reality. You may believe that you’re being harassed, but in actuality, an objective observer would find that the complaint is not well-founded in reality.”

There’s also a grey area when it comes to preventing violence in the workplace. Part of the problem is the wording of the law, which asks employers to take “all reasonable precautions” to protect a worker should they become aware of a situation that could expose an employee to injury while on the job. To that end, employers are required to disclose any information about a person with a history of violent behaviour to employees who work with that person.

Does that mean employers need to do their homework on their staff beyond a criminal records check? Should you share word-of-mouth reports of potentially violent behaviour? Is this an invasion of privacy?

“My review of that is that employers are only producing what is reasonably necessary to deal with the investigation,” Evans explains. “Twenty years ago, employee privacy rights were non-existent. But personal information is very important now and employers will be conservative in how much they disclose.”

(Curiously, there’s no corresponding requirement to dispense information to co-workers with respect to an employee’s history of workplace harassment.)

But how far do you wade into the issue of domestic violence? “The definition of violence in the statute is pretty broad,” says Evans, “and you have to take reasonable steps as an employer to the extent that it impedes upon an employee’s interests at the workplace. For example, if you have two spouses in the same workplace, you may be required to separate them and do an investigation that may transcend into the workplace.”

But does that go as far as restricting one spouse from entering the workplace, or even the parking lot? Or an off-site work-related function? While several questions have yet to be answered, Evans disputes the concern that the new legislation will create an undue workload.  “It’s not rocket science,” he says. “You aren’t going to have to hire a lawyer or consultant to comply—a simple read of the legislation should allow an HR department to deal with it. You have to set up a policy and a process, but it’s not all that different from what most employers should already have in place for human rights violations. It’s just broadening the scope of the policy, making employees aware of what constitutes harassing and violent behaviour and making them aware that it won’t be tolerated in the workplace. And if anyone has a complaint, here’s the process. 

“When investigating, “consider all the facts with an open mind,” Evans says, “and attempt to deal with it internally. If that doesn’t work, there’s the ability to take it to the next step—bringing an investigator in from the Ministry of Labour.” 

It’s what happens after a violation has been proven that has Evans most intrigued. “There’s a wide latitude to grant remedies. The way I read the statute, an inspector has to go in and make orders in the workplace. Thereafter, there’s a right to appeal to the labour board.” 

Will workplace chemistry be affected as staff walk on eggshells to avoid offending? “I don’t think so,” says Evans. “And the flip side of that is if there is abusive behaviour going on in the workplace, that too will affect the chemistry and productivity.

“They’re just trying to level the playing field for all employees, to set basic standards of conduct that must be followed. For 90 to 95 percent of employers, this is going to be a non-event. It’s the fringe employers, those who play it close to the line or occasionally cross that line, those who drive their workforce, who will have problems. Your big corporations won’t even blink over this.”