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Profiting Through Prevention
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Today

• A broad perspective on the issue of workplace
  violence (Psychological Harassment)
• The Canadian experience
• The anatomy of a violent incident
• Threat/Risk Assessment
• Legislative/legal obligations (Bill 168)
• Prevention programming

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What are we talking about

• Continuing disagreement regarding the definition
  and parameters of violence.
• Two parameters
• physical versus Non physical
• The source (who is the perpetrator)

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Violence Definitions Vary

• BC Physical force by a person other than a
  worker. (HHSR, s. 4.27)
• AL threatened, attempted or actual conduct of
  a person that causes or is likely to cause
  physical injury (Code, s. 1)
• Sask. attempted, threatened or actual conduct
  of a person that causes or is likely to cause
  injury (Regs, S. 37) (includes harassment)
• Man. - attempted or exercise of physical force
  against a person (includes harassment)
• Ont. (Bill 168) the exercise of physical
  force by a person against a worker in a
  workplace (includes harassment)

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Psychological Harassment

• means an vexatious behaviour in the form of
  repeated and hostile or unwanted conduct, verbal
  comments, actions or gestures, that affects an
  employees dignity or psychological or physical
  integrity and results in a harmful work
  environment

Quebec Labour Standards - June 1, 2004
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Regulatory Shift
As thought there has been a regulatory migration
towards the inclusion of indirect forms of
aggressiveness, frequently referred to as
psychological harassment
Saskatchewan, Manitoba, Quebec and Ontario
(pending) include harassment
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Growing Pressure to expand the Definition of
Violence

• We recommend that workplace violence be
  defined, not only as physical violence but also
  as psychological violence such as bullying,
  mobbing, teasing, ridicule or any other act or
  words that could psychologically hurt or isolate
  a person in the workplace.
• (OC Transpo Inquest Recommendation 7)

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Growing Pressure to expand the Definition of
Violence

A Review of the Occupational Health and Safety
Act to examine the feasibility of including
domestic violence, abuse and harassment as
matters subject to Ministry of Labour
Investigation and Action
Lori Dupont Coroners Inquest December 11, 2007
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The Evolution of Bullying (General/Personal
Harassment)

• Historically the focus of attention was on
  physical workplace violence
• Growing evidence to suggest that interpersonal
  mistreatment has been a contributor
• This mistreatment has been described as verbal,
  indirect and passive

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A General Definition of Bullying

• Workplace bullying is the persistent
  mistreatment of one or more employees, sometimes
  by an employee in a position of influence or
  authority, who, intentionally or unwittingly,
  subjects others to behaviour that humiliates,
  demoralizes or otherwise undermines the victims
  credibility, effectiveness and personal
  wellbeing.

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Warning Signs of Bullying

• Unjust criticism, fault-finding and belittling
• Communication that embarrasses or humiliates the
  person privately or publicly
• Explosive outbursts
• Intentionally and repeatedly isolating someone
• Taking credit, undermining or deliberately
  impeding a person's work
• Intrusive contact outside of working hours (phone
  calls, e-mails)

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Additional Warning Signs

• Setting unrealistic goals or deadlines
• Denying access to information necessary to
  complete a task
• Blocking applications for training, leave or
  promotion
• Removing areas of responsibilities Unwarranted
  (or undeserved) punishment
• Constantly changing work guidelines

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Bullying is NOT

• Objective comments intended as constructive
  feedback
• Reasonable action taken in a constructive
  manner to advance a work process
• A decision based on reasonable grounds not to
  award, promote, transfer
• Reasonable administrative action in the course
  of employment.

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Our Working Definition
Any incident in which a person is abused,
threatened or assaulted in circumstances relating
to their work. These behaviors would originate
from customers, co-workers at any level of the
organization. This definition would include all
forms of harassment, bullying, intimidation,
physical threats/assaults, robbery and other
intrusive behaviors (IOL, 1999)
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The Canadian Experience

• Women have 19 higher rate of physical or
  psychological assaults than the US
• Stats Can. 12,000 women 51 attacked
• CUPE 1994 70 reported verbal aggression, 40
  struck, 30 grabbed
• Sexual Harassment fastest growing compliant since
  1991 (Ont. Human Rights Commission)

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Canada in a Global Context

• France, Argentina, Romania, Canada, England
  reported highest rates of assaults sexual
  harassment on the job. (ILO, 1999)

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Statistics Canada Criminal violations 1998
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Statistics Canada Criminal Violations 2000
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Criminal Violations Actual number of persons

• 1998 2000 Change
• Homicide 255 319 25
• Robbery 19,572 21,279 9
• Criminal 5,378 7,143 33
• (Harassment)
• Sexual 8,374 9,921 18
• (Assault)
• Assault 8,0267 10,3617 29

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CIWV Preliminary Findings

• Violence has increased (66)
• Physical violence reported from outside, whereas
  Psychological from within
• 78 have taken concrete steps to act
• 53 suggest not enough being done
• 91 believe Canada different than US but moving
  in that direction

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What are the sources of violence?
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From Impoliteness to Physical Attack
Violence is rarely a spontaneous act but more
often the culmination of escalating patterns of
negative interaction between individuals
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Violence An Interaction

• An interaction between three factors
• Stimulus that leads subject to think this is the
  only way out
• A viable solution to the problem at hand
• An organization that facilitates/permits
  violence, or at least does not stop it from
  occurring.

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The Concept of Control
High Locus Control
Transitory Anxiety
Chronic Lack of Control
Perceived Injustice
Low Locus of Control
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The Importance of Control
Work
Social
Physical
Interaction
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The Behavioural Sequence
A
B
G
Perception
F
C
E
D
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The Case of Bullying that Changed Canadas
Legal Landscape
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Pierre LeBrun

• 12 year employee of OC Transpo (Nov.86-Dec.98)
• Driver, then Parts Clerk
• Pronounced stutter and facial ticks at times of
  stress
• Complained of being teased, mimicked and
  ridiculed by co-workers to OH nurse, HR worker,
  doctor, and supervisor
• Treated for depression
• Expressed concern about being labeled a rat and
  retaliation

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Events of April 6, 1999

• OC Transpo St. Laurent Repair Complex
• Pierre LeBrun at 240 p.m. begins shooting with a
  high powered hunting rifle
• Kills 4 workers, wounds 2, kills himself
• Police TAC Units and paramedics respond, reach
  deceased at 430 p.m.

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The Letter

• Im going to commit an unforgivable actI
  have no choice. Im tired, exhausted and
  completely backed against the wallThey will
  never leave me alone. I cant go on living like
  this! They have destroyed my life, I will destroy
  their lifeOC Transpo and the unions cant hide
  from what they do to meThey will pay dearly for
  what theyve done to me. The people who I hold
  responsible are (four names listed) along with
  many others all I wanted was for them to leave
  me alone, not to bug me but it was too much to
  ask. They have spread lies, especially that I was
  a rat who denounced my own union members to try
  and have them stop laughing at me.

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Co-worker Suicide

• I have been unable to sleep well since the
  shooting at OC. The gunman, Pierre had talked
  with me to great length about it and where to be
  for a better shot at some managers as it turned
  out he shot himself at this location in the loft.
  I feel guilty as hell for not telling anyone.
  July/99

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Post Event Analysis

• Pierre LeBrun worked in a poisoned
  workplace. He was repeatedly harassed due to his
  speech impediment, his tic disorder He
  complained about the ridiculing to a number of
  individuals at OC TranspoThe personal factors of
  speech impediment, tic disorder, poor self
  esteem, anxiety, depression and paranoia
  exacerbated by workplace factors of chronic
  harassment and ridicule proved to be a fatal
  combination
• Dr. Peter Collins (forensic psychiatrist)

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Legislative/Legal Responsibilities

• Common Law Liability
• Liability of the employer for the acts of its
  employees
• Liability of the employer for its own acts

• Statutory Liability
• Occupiers Liability Act
• Occupational Health Safety Act
• Human Rights code
• Criminal Code

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Negligence of Employer
Rests on the employers awareness of events in its
workplace and has responded reasonably based on
that knowledge. In essence a duty of care.

• Negligent hiring
• Negligent retention
• Negligent Supervision

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Negligent Hiring

• More developed in the US but has been made in
  Canada
• An employer may have hired negligently where a
  person with known propensities for violence
  should have been discovered.
• Reference checks, personal interviews, security
  checks

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Negligent Retention

• A claim may arise where an employer continues to
  employ an employee, despite the fact that the
  employer knew or ought to have known of the
  employees history or propensity for violence,
  and that the employee engages in a violent act.

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Negligent Supervision

• Often referred to in the US.
• The employer can be held liable for negligently
  retaining an employee, such as an supervisor,
  whom they were aware had a propensity for
  violence.

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Statutory Liability

• Occupiers Liability Act
• People who are in control over land must ensure
  that their premises are safe for persons who may
  be reasonably expected to enter.
• There are a number of security steps that can
  mitigate the risk - lighting, intercom, alarm
  systems, electronic access, ID tags, single
  reception, etc.

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Human Rights Legislation
Every Canadian jurisdiction also has Human Rights
legislation that protects each of us against
discrimination and harassment. Some companies
have specific policies regarding harassment and
fair work practices. The Human Rights policy may
be integrated into your workplace violence
prevention policy or it may stand alone.
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OHS Legislation
Every Canadian jurisdiction (provincial/territoria
l/federal) has its own Occupational Health and
Safety legislation. This legislation is
intended to protect all employees against hazards
on the job, including workplace violence.
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Workplace Violence Legislation
Federal Government

Pending
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Key Developments

• Federal Canada Labour Code Regulations,
  December, 2007
• Ontario Bill 29, December, 2007
• Bill 168, April, 2009

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Canada Labour Code II
Regulations

• Any action , conduct, threat or gesture of a
  person towards an employee in their workplace
  that can reasonably be expected to cause harm,
  injury or illness to that employee

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COHS Regulations

• Employer must assess and identify factors that
  contribute to workplace violence.
• Past experience
• Similar workplaces
• Reports of violent incidents
• Measures currently in place

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COHS Regulations

• Develop, establish post a Policy regarding
  workplace violence.
• Commitment to a safe workplace
• Dedicate resources to address violence including
  bullying and teasing.
• Communicate factors that might contribute to
  workplace violence
• Assist victimized employees

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COHS Regulations

• Once a policy in place, the employer must
  establish systematic controls
• 90 days after the risk assessment
• Prevention measures may include workplace design
  and processes
• Reporting/Investigation
• Training
• Reviewed every 3 years

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The Criminal Code

• Some acts of violence fall under the Criminal
  Code just because they happened in a workplace
  does not change this fact. The Criminal Code
  covers acts of violence such as
• Criminal harassment
• Uttering threats
• Hostage taking
• Sexual assault
• Assault
• Murder

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Bill 168

• First reading, April 20, 2009
• To protect workers from both physical violence
  and harassment
• Noteworthy Domestic Violence, Right to
  Refuse Work, Duty to Warn Risk Assessment
  Reporting of Violence to MOL. Accountability
  under the OHSA

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Status of Bill 168

• Second reading under way
• MOL is very committed to its passage
• Unclear when it will pass
• Will become law 6 months after Royal Assent

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Who Bill Applies To

• Workplaces with more than 5 employees unless
  inspector orders otherwise.

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Bill 168 ( Employer Responsibility)

• Policy (posted at a conspicuous place)
• Assess and identify risks
• Prevention measures and procedures
• Reporting/Communicate procedures and appropriate
  investigative procedures
• Copy of risk assessment to the JHSC
• Training obligation

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Definition of Workplace Violence

• 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

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Definition of workplace Violence

• Does not cover threats
• Unintentional force could be considered
  Workplace violence
• Covers acts of violence by members of the public
  against employees.

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Definition of Workplace Harassment

• 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

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Key Features of Harassment Definition

• Not tied to prohibited grounds under the Human
  Rights Code
• Could be applied to a wide range of conduct
• Subjective in scope

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Policy Requirements

• In writing
• Posted in conspicuous place in the workplace if
  there are 5 or more employees in the workplace
• Review as often as is necessary, but at least
  annually

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Workplace Violence Assessment

• Considerations to take into account
• Similar workplaces
• Circumstances specific to your workplace
• Other elements prescribed by regulation

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Workplace Violence Assessment

• Must advise the JHSC of the results in writing
• Reassess as often as is necessary to ensure that
  the related policy and program continue to
  protect workers

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Required elements of a Workplace Violence Program

• To control the identified risks
• For summoning immediate assistance when workplace
  violence occurs or is likely to occur
• For workers to report incidents
• Set how the employer will investigate and deal
  with incidents and complaints

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Duties to Inform and Instruct Employees

• As appropriate on the contents of the policy
  and program
• To provide information including personal
  information related to a risk of workplace
  violence if
• Expected to encounter the person in the course of
  their work
• Risk is likely to expose worker to physical
  injury

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Limit on Disclosure

• Not to disclose more personal information in the
  circumstances than is reasonably necessary to
  protect the worker from physical injury

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Duties to Inform and Instruct

• Part of the general duty on employer to inform,
  instruct and supervise a worker under s.25(2)(a)
  of the OHSA
• Duty to advise re workplace violence risks also
  applies to supervisors.

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Domestic Violence

• Duty triggered if the employer becomes aware (or
  ought to become aware) that domestic violence
  will likely expose a worker to physical injury in
  the workplace
• Take every precaution reasonable in the
  circumstances for the protection of the worker

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Required Elements of a Workplace Harassment
Program

• Measures and procedures for workers to report
  incidents of workplace harassment
• Set out how the employer will investigate and
  deal with incidents and complaints

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Duty to Inform and Instruct

• Employer must provide information and
  instruction that is appropriate for the worker

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Work Refusals

• Employees will have the right to refuse work if
  workplace violence is likely to endanger himself
  or herself
• No right to refuse work because of harassment

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Work Refusal Process

• Must report to supervisor or employer
• Employer must investigate forthwith in presence
  of a JHSC member or a worker selected by the
  union or the workers
• Worker to remain in a safe place near work
  station pending investigation

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Work Refusal Process

• If the worker continues to refuse MOL is to be
  called
• MOL will investigate and decide if workplace
  violence is likely to endanger the worker
• Worker to remain in a safe place pending the
  investigation

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Enforcement

• MOL is to release guidelines in regard to how
  provisions of Bill 168 will be enforced and
  applied
• Much will depend on the training given to
  inspectors (currently underway)

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Enforcement Questions

• Will there be a blitz?
• How far will inspectors go to review violence
  assessments?
• How much detail will the policies and programs
  need to contain?
• Will noncompliance with the policy and program
  requirements result in higher fines or civil
  liability?

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Employer Obligations Workplace Harassment
Prevention
The development and implementation of a policy
and prevention program with respect to workplace
harassment.
At a minimum a. Procedures to report incidents
of harassment b. Procedures defining how the
employer will investigate and address incidents
and complaints of workplace harassment.
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Note
It is noteworthy that the Bill contemplates an
obligation to investigate complaints and
incidents. This suggests the employer
obligation to investigate and address harassment
is not limited to responding to complaints. The
additional word incidents suggests a broader,
more proactive obligation.
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Employer Responsibility for Domestic Violence
If the employer is aware or ought reasonably to
be aware that a domestic violence matter could
expose a worker to physical injury, the employer
will be required to take reasonable precautions
for the protection of the worker.
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Right to Refuse to Work Where Risk of Violence
Right to Refuse to Work Where Risk of
Violence The Bill will extend the right to refuse
to work where workplace violence or the risk of
violence is likely to endanger a worker
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• Your Road Map to Prevention

Policy
Hazard Assessment
Training Education
Continuous Program Review
Prevention Measures
Incident Follow-Up
Victim Assistance
Reporting Investigation
Emergency Response Planning
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Workplace Violence Prevention Policy

• Every organization should have a workplace
  violence prevention policy that is jointly
  developed by management and employees.
• This document is the foundation of your violence
  prevention program.

Prevention Policy
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Violence Prevention Policy Violence Prevention
Policy should

• Communicate your organizations commitment to
  preventing workplace violence
• Provide an overview of your violence prevention
  program
• Establish clear standards of behaviour
• Apply to all employees, managers, contractors
  and clients (e.g. customers, patients, students)

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Hazard/Risk Assessment
Hazard Assessment

• To effectively prevent workplace violence you
  need to have a good understanding of workplace
  violence risk factors.
• Your workplace specific hazard assessment will
  build on this understanding and must include
  input from both management and employees.

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The Importance of Risk Assessment

• A comprehensive risk/hazard assessment is the
  foundation on which to develop a workplace
  specific violence prevention program while
  ensuring legislative compliance.
• It is a logical starting point

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The Nature of Risk
Two components when thinking of risk assessment

• The risk associated with an individual who may be
  potentially aggressive
• The organizational risks relating to design, work
  processes, etc.

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History of Violence in your Workplace

• Some form of survey of employees at all levels of
  the organization
• Consult relevant internal documents and reports
• Identify risk factors in your workplace
• Inspect the workplace

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Workplace Trends in Similar Organizations
Obtain information from relevant sources such as

• Insurer
• WSIB
• Occupational, Health Safety enforcement agency
• Local police (security)
• Union

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Risk Assessment
Employee Interviews

• Employee Interviews
• Interview representative cross-section of
  employees/management
• Interviews should be done on a confidential basis
• Consistent questions

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Risk Assessment
Work Site Audit

• Review of physical facilities
• Conduct observational tours of the workplace
• Look for environmental risk factors (exits,
  barriers, ID, etc.)
• Utilize a risk identification checklist

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Risk Assessment
Work Site Audit

• Categories to include on a risk assessment
  checklist
• Access control
• Escape opportunities
• Visibility
• Security and surveillance systems
• Parking areas, exterior, building perimeter
• Cash handling (if applicable)
• Remote work/work alone (if applicable)
• Health care and community sector (if applicable)
• Service sector (if applicable)

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Prevention The Next Step

• Your hazard/risk assessment will help identify
  the most significant concerns in your
  organization.
• The next step is to develop specific measures
  that will eliminate or minimize these hazards

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Before Launching Prevention measures, consider

• Communicating the results of your assessment and
  the prevention plan
• Explain the hazards identified
• Describe the changes
• Explain the reason behind the identified change
• Emphasize the positive and preventive aspects of
  your program

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Developing Preventive MeasuresYour hazard
assessment will identify the most significant
concerns for your organization.
The next step is to develop specific measures
that will eliminate or minimize these
hazards. Preventive measures include training
and educating employees about workplace violence,
as well as making improvements or changes to your
workplace.
Prevention Measures
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Developing Preventive Measures

• When developing preventive measures, you should
  consider
• Workplace design includes the physical lay-out
  of the workplace and the use of signs, locks or
  physical barriers, lighting and electronic
  surveillance.
• Administrative practices - decisions you make
  about how you do business, such as hours of
  operation and staffing levels.
• Work practices - safe-guards you take while you
  are actually doing the job.

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Reporting Investigating
Workplace violence is frequently under
reported. Every workplace should have a clearly
defined system set up for the reporting,
recording and investigating incidents or possible
incidents of violence.
Reporting Investigation
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Emergency Response Planning
From an both an personal and organizational
perspective, it is essential that you have
specific plans in place ahead of time that
clearly outline how to respond to a serious
incident. The plan should be thorough enough
to deal with most incidents, but easy enough to
understand and remember.
Emergency Response Planning
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Victim Assistance

• In the aftermath of an incident of workplace
  violence, traumatized people may require
  emotional and medical support.

Victim Assistance
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Incident Follow-up

• Incident follow-up is part of your ongoing
  efforts to assess hazards and improve prevention
  and response strategies
• Incident follow-up occurs some time after the
  incident has been investigated and after
  recommendations for prevention have been made.
  It involves taking a second look at the situation

Incident Follow-Up
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Training Education
Education and training are a very important part
of any violence prevention program. The exact
content and type of training necessary will
depend on the results of your workplace hazard
assessment and your workplace-specific prevention
program.
Training Education
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Program Review

• Program review should occur at least annually
  and more often than that if any of the following
  situations apply
• Your organization has experienced an increase in
  violent incidents
• Your organization has undergone a significant
  change (e.g. relocation, addition of new shifts,
  a significant change in business circumstances)
• There have been legislative changes that affect
  your organization

Program Review
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Where to From Here

• Violence in the Workplace Prevention Guide
  Canadian Centre for Occupational Health Safety
  1-800-668-4284
• Violence in the Workplace, Eric Roher, Carswell
  Publishing 1-800-387-5164
• Human Resources Guide to Workplace Violence,
  Norman Keith, Canada Law Book
• Civil Liability for Sexual Abuse Violence in
  Canada, Elizabeth Grace, Butterworths
• Any of these overheads gfrench_at_rogers.com

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Overheads

• gfrench_at_rogers.com