This webinar is brought to you by CLEONet

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This webinar is brought to you by
CLEONet www.cleonet.ca
CLEONet is a web site of legal information for
community workers and advocates who work with
low-income and disadvantaged communities in
Ontario.
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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.
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METRACs Workplace Justice Series
Bill 168 Ontario's New Legislation on Harassment
and Violence in the Workplace Presented by
Zahra Dhanani Legal Director, Justice Program
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METRACS Workplace Justice Series
METRACS Workplace Justice Series Women
Migrant Farm Workers Experiencing
Workplace Sexual Violence and Harassment
METRACS Workplace Justice Series Exotic
Dancers Experiencing Workplace Sexual
Violence and Harassment
Workplace Sexual Violence Harassment
METRACS Workplace Justice Series Domestic
Workers Live-in Caregivers Experiencing
Workplace Sexual Violence and Harassment
METRACS Workplace Justice Series Women
Temporary Help Agency Employees Experiencing
Workplace Sexual Violence and Harassment
METRACS Workplace Justice Series Wome
n Health Care Workers Experiencing Workplace and
Harassment
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Just Legal InformationSorry!

• I CAN try and answer general legal information
  questions.
• I CANNOT give advice on individual cases.

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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

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Legislative Framework Workplace Issues

• Ontario Human Rights Code
• Occupational Health and Safety Act
• Employment Standards Act
• Workers Compensation Act
• Workplace Safety and Insurance Act
• Canada Labour Act
• CCC, IRPA, etc.

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Canadas 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

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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 persons 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.

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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.

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Contd

• 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 murdered
• November, 2005 Bill 35
• December, 2005 Bill 45

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Contd..

• December, 2007 Dupont Inquest lead to 26
  reccommendations.
• December, 2007 Bill 29 (died)
• December, 2009 Bill 168
• June 15, 2010 Comes into effect

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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

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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.

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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 ministrys tag line for this Bill on its
  communications material is Violence and
  harassment have no place in the workplace.

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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)

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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

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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

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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

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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).

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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

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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.

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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)

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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.

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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.

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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).

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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

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.

• 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.

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Arguments of Counsel

• Counsel for the Employers put forward
• Open up a Floodgate of Sexual Harassment claims
• Severe Duplication Issue
• Sexual Harassment is discrimination but it is not
  violence. It is not a safety issue.

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Findings

• Both cases were dismissed
• Duplication
• Sexual Harassment not covered under the OHSA as
  it is not a safety issue.

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Training Programs OHSA

• Border Steel Ltd. v. Workers of Border Steel Ltd.
• Skyjack Inc. v. Ontario
• Business Case trumps Safety
• Inspector had concerns regarding worker safety,
  but was unable to address them with the tools
  available

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METRAC Findings

• Marginalized Workers

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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 womens inequality and
  uneven power relations.

"Safer for Women, Safer for Everyone"
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Contd 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.

"Safer for Women, Safer for Everyone"
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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

"Safer for Women, Safer for Everyone"
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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
"Safer for Women, Safer for Everyone"
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• 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 Dont Ask Policy is not a Dont
  Tell Policy
• ? Workers without legal status should consult
  with a lawyer/legal clinic before
• ? filing a civil suit
• ? applying for compensation

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If you would like to order METRACs Workplace
Justice Series or other METRAC materials, please
contact METRAC at Tel [phone]E-mail
info_at_metrac.orgFor online resources, visit
www.metrac.org www.owjn.org
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