Canadian Safety Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 CSR | May 2014 | News Workplace violence and health and safety Relation between workplace harassment and workplace health and safety BY STUART RUDNER IF AN EMPLOYEE is harassed or threatened by another em- ployee at work, this raises con- cerns about harassment and workplace violence. Does this also relate to an employer's ob- ligations under occupational health and safety legislation — or are these things usually kept separate legally? Any time an employee is ha- rassed, threatened or subjected to violence at work, it will relate to an employer's obligation to provide a safe workplace. That obligation, in turn, re- lates to occupational health and safety legislation, so the issues are certainly not separate. Generally speaking, both pur- suant to legislation and com- mon law, there is an obligation on the part of an employer to make reasonable efforts to en- sure that the workplace is rea- sonably safe. Of course, it is im- possible for anyone to guarantee a workplace will be 100 per cent safe. In the past, concerns regard- ing workplace safety typically focused on issues relating to the layout of the workplace it- self, such as loose stairs or slip- pery floors. However, in recent years, we have seen a dramatic increase in the amount of atten- tion given to workplace harass- ment and bullying. In Ontario, Bill 168 was in- troduced in order to amend the province's Occupational Health and Safety Act and explicitly re- fer to, among other things, ha- rassment and bullying. Employers must take reason- able steps in order to address such concerns, and a failure to do so will expose them to poten- tial liability. It is not acceptable for an employer to ignore or trivialize complaints regarding threats, violence or harassment. These are not "personal issues" and the employee cannot be left to "deal with it" — they are workplace is- sues that must be addressed. Where another employee is guilty of such conduct, she should be disciplined, which might include summary dis- missal in appropriate cases. As I have discussed in many other contexts, employers must be cautious when considering summary dismissal as it re- quires consideration not only of the misconduct in question but all relevant circumstances. However, employers cannot simply ignore the issue, and ap- propriate measures, including discipline, should be under- taken. It is important to note the "workplace" extends beyond the four walls of the office or shop. As a result, even if the situation involves harassment that takes place online or off-site, it will likely be deemed to relate to the workplace, and the employer will have an obligation to ad- dress it. Stuart Rudner is a founding partner of Rudner MacDonald, a Toronto- based employment law firm. He is author of You're Fired: Just Cause for Dismissal in Canada, published by Carswell, a Thomson Reuters business (see www.carswell.com for more information or to order your copy). He can be reached at srudner @rudnermacdonald.com. across," Lukaszuk explained. "They needed some hard-hit- ting enforcement methods." Currently, the province has about 140 OHS officers, who all undergo training and receive the peace officer designation in just over a year. The fact that employers and workers will now face financial penalties for the first time is having an impact, said Brookes Merritt, spokesperson for the government's OHS department. "What we're hearing from stakeholders is that they're gen- erally supportive of the new measures, and they understand that, now, when there's money on the line, there's certainly incentive to do better," Mer- ritt said, adding, "It's not a slap on the wrist — it's fairly costly. On the administrative penalty side, the intent there is that very clearly the penalties, if they're warranted, will be beyond the cost of doing business for most operators in the province." Whereas previously inspec- tors were only able to issue stop- work, stop-use orders and the like, writing up tickets and is- suing fines will stop health and safety violations at the source. Before, there was a gap in the enforcement spectrum between education, issuing orders and prosecution through the courts, Merritt explained. Orders car- ried little to no weight while prosecution proved much more expensive. The new system combines the best of both. "The spirit of these two new penalties was to fill the gap on the enforcement spectrum where we have something that is financially punitive, but less tax- ing than full-blown prosecution through the courts," he said. By any other name President of the Alberta Federa- tion of Labour, Gil McGowan, called the new ticketing system an important and long overdue change — something the labour federation has been lobbying for for decades. However, the peace officer designation for OHS of- ficers does not change much on the ground, he added. "What's more important are the tools available to inspectors when it comes to enforcing the code and keeping workers safe," McGowan explained. "These kind of systems work in terms of safety because they give inspec- tors tools that allow them to act quickly and effectively to ad- dress safety concerns that they see on the ground." However, McGowan argued ticketing by itself is not enough to effectively manage occupa- tional safety in a province such as Alberta. More inspectors, industry-targeted inspections and more prosecutions for seri- ous offences are needed. "As it stands right now, we have fewer inspectors per work- er than most other provinces, which is particularly problem- atic when you consider that we have many more people working in dangerous occupations than other provinces," McGowan said, citing the booming oil and gas and construction sectors. Because the energy industry is expanding so rapidly in Alber- ta, McGowan said safety is often left simmering on the back- burner. As such, employers tend to cut corners and put workers in harm's way. Regardless of the official title of the inspector, the process must be reinforced fur- ther in order to adequately ad- dress the problem, he added. "The introduction of the tick- eting system needs to be seen in the context of what is actu- ally happening with workplace health and safety here in Alber- ta — and, frankly, it's a context that remains disappointing and troubling." No tickets had been issued by OHS peace officers as of press time. PEACE OFFICERS < pg. 1 New system 'fi lls gap in enforcement spectrum'

• Cover