Canadian Safety Reporter

april 2014 8 Canadian HR Reporter, a Thomson Reuters business 2014 published 12 times a year by thomson reuters canada ltd. subscription rate: $129 per year customer service Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5106 E-mail: carswell.customerrelations @thomsonreuters.com Website: www.carswell.com One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 publisher: John Hobel managing Editor: Todd Humber contributing editors: Zachary Pedersen Liz Foster Sabrina Nanji marketing manager: Mohammad Ali mm.ali@thomsonreuters.com (416) 609-5866 circulation co-ordinator: Travis Chan travis.chan@thomsonreuters.com (416) 609-5872 ©2014 Thomson Reuters Canada Ltd/ ISBN/ISSN: 978-0-7798-2810-4 All rights reserved. No part of this publi- cation may be reproduced, stored in a re- trieval system or transmitted, in any form or by any means, electronic, photocopy- ing, recording or otherwise without the written permission of the publisher (Car- swell, a Thomson Reuters business). Canadian Safety Reporter is part of the Canadian HR Reporter family: • Canadian HR Reporter (www.hrreporter.com) • Canadian Occupational Safety magazine (www.cos-mag.com) • Canadian Payroll Reporter (www.payroll-reporter.com) • Canadian Employment Law Today (www.employmentlawtoday.com) • Canadian Labour Reporter (www.labour-reporter.com) See carswellmedia.com for more info www.safety-reporter.com policy considerations of fair compensa- tion and deterrence upon which vicari- ous liability is premised may be attenu- ated or completely eliminated in such circumstances." Thus, while the potential for an em- ployer to be held civilly liable for an employee's off-duty harassment of a co- worker or a customer is limited by the principles applied in determining vicari- ous liability, it is not non-existent. If an employer could be found to have significantly increased the risk of harm by putting the employee in her po- sition and requiring her to perform the assigned tasks that resulted in the harm, vicarious liability might be found despite the off-duty nature of the misconduct if there was a connection to employment. Finally, an employer may be liable under human rights legislation for off- duty conduct of an employee where the conduct amounts to a breach of human rights legislation. Since the Supreme Court of Canada decision in Robichaud v. Canada, it has been clear that employers may be held liable for the discriminatory acts of their employees, subject to the specific terms of the relevant legislation. In Attis v. New Brunswick School District No. 15, a school board was found liable under hu- man rights legislation for the conduct of a teacher in making widely-disseminated anti-Semitic statements while off-duty. The school board's liability was based on its failure to respond in any meaningful way and its continuation of the teacher's employment, effectively condoning his off-duty misconduct. A similar result is possible if an employee's off-duty harassment was also a breach of human rights legislation. Tim Mitchell is a partner with Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225 or Tim. Mitchell@nortonrosefulbright.com. Civil liability also a possibility Continued from page 5 people with an opportunity, when they want, to discuss their particular reac- tion, or to at least know what some of the signs and symptoms might be in the future," he said. "Some employers don't want to do that, because they're afraid that if they talk about it, people might get more upset and they won't come back to work, when actually the (opposite) is true. If it's done skillfully, it's not an invitation for people to stay off work, but it is an opportunity to make sure people are a little bit more educated as to what to expect." Organizations should have a com- prehensive policy in place for dealing with a violent incident — particularly organizations that work with the pub- lic, said Kelloway. "The other thing organizations should be doing is — because of this heightened level of fear that people experience — to be reviewing your se- curity procedures and maybe beefing them up… and even if that results in no change, I think you need to go through that to signal to your employees that this actually concerns us, we care about this and we're trying to make this as safe as possible," he said. Upgraded security can help make em- ployees feel more comfortable. "If I know that we used to work in an environment that was open to the pub- lic, but something tragic happened, and now we have a secured entry — we have a swipe card or something and only au- thorized people can get in — that's go- ing to help relieve some of the anxieties for people," said Kelloway. But employees may still have diffi- culty returning to the scene of the crime. "Sometimes people are not able to come back to the place where the inci- dent happened, and then it becomes a question for the employer of accommo- dation — especially if they have a bona fide psychiatric diagnosis such as PTSD, it becomes a human rights issue at the same time," said French. There's no ideal timeline, and every- one will respond differently, said French. Review security procedures Continued from page 7

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