Canada: Bill 168: A Two Year Review

It has been almost two years since Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace), 20091 came into force. Bill 168, which came into effect on June 15, 2010, imposed new duties on Ontario employers, including school boards, to address violence and harassment in the workplace.

The Ministry of Labour has made it clear that the new law is being taken seriously. In the period between June 15, 2010 and March 31, 2011, Ministry of Labour Inspectors investigated more than 400 complaints involving workplace violence and more than 1,000 complaints involving workplace harassment. In addition, 600 orders associated with workplace violence and 1,100 orders related to workplace harassment have been issued by the Ministry of Labour.2

In a school board context, there have been a number of both workplace violence and harassment complaints over the past two years. There is no doubt that incidents of violence or harassment can have a personal impact on the well-being of school personnel. These incidents can have consequences for the management and operation of the school with respect to possible lost time from work, health care expenses and lost productivity.

In some cases, allegations have been made of workplace harassment against co-workers that arise from a personality conflict or allegations against school administration that result from proper directions and supervision. For school administrators, it is important to understand the definition of workplace harassment set out in the legislation and the procedures for reporting and investigating complaints.

From the outside, it should be recognized that the provisions under Bill 168 do not just apply to schools and school boards, but to virtually every employer in the Province of Ontario. Under Bill 168, most employers in Ontario were required to:

  1. undertake a workplace violence risk assessment;
  2. prepare internal programs and policies aimed at workplace violence and harassment;
  3. create procedures for summoning immediate assistance when workplace violence is imminent or occurring;
  4. create procedures for reporting and investigating complaints of workplace violence or harassment; and
  5. provide information and instruction to all staff on internal policies and programs.

The legislation requires employers, including school boards, to review their policies and procedures, at least annually, and to review and update their workplace violence risk assessment as often as is necessary to ensure that workers are protected.

A recent case, Daniel Parsons v. Simcoe County District School Board and Ontario Secondary Teachers' Federation, dealt with the issue as to whether a conflict between staff members of a school constituted workplace harassment.3 Mr. Parsons was teaching in the science department of a high school in Barrie, Ontario. He alleged that he became the subject of harassment by two female teachers, W.R. and C.D., in his department. The complaint made by Mr. Parsons included allegations that:

  • W. R. spread gossip about another teacher (not Mr. Parsons himself);
  • W.R. and C.D. declined his suggestion to meet to discuss departmental issues;
  • W.R. and C.D. confronted Mr. Parsons on one occasion about his criticisms of W.R. as a teacher; and
  • W.R. shouted at Mr. Parsons to turn off the lights in the course of a meeting.

In a decision rendered on January 6, 2012, Patrick Kelly, a Vice-Chair of the Ontario Labour Relations Board, ruled that, at best, one might conclude that there was a personality conflict between Mr. Parsons and the female teachers. Mr. Kelly stated that this kind of problem can and should be resolvable as between adult professionals. He concluded, "In the circumstances of this case it is quite simply not workplace harassment."

Workplace harassment under the Occupational Health and Safety Act 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."

In his decision, Mr. Kelly found that in reviewing the allegations against the two female teachers, he saw no course of vexatious comment or conduct against Mr. Parsons. He ruled that the actions of the female teachers demanding an explanation from Mr. Parsons does not constitute vexatious conduct.

Another recent case, City of Kingston v. CUPE, Local 109,4 involved an employee who uttered a death threat to a Union President in a workplace meeting. In the case, the female employee admitted to having an anger management problem, but denied the allegation.

Arbitrator Elaine Newman ruled that the termination of the employee was an appropriate disciplinary response. The Arbitrator was particularly concerned that the employee refused to accept responsibility for her misconduct and did not appreciate how serious her misconduct was.

While Arbitrator Newman agreed that there was no evidence that the employee intended to make good on her threat, or even that the Union President fully believed that his life was in danger, she held that such findings were not necessary in order to conclude that workplace violence had occurred. The Arbitrator ruled that the making of idle threats of this nature was enough to trigger a serious disciplinary response from the employer.

Coupled with the employee's lack of remorse and credibility, her chequered history of outbursts of anger and aggression in the workplace and the fact that the incident took place shortly after she had received training on Bill 168, and had attended an anger management program, the Arbitrator held that her dismissal was appropriate.

Addressing the impact of Bill 168, Arbitrator Newman found:

  1. Bill 168 has elevated inappropriate language in the workplace, such as death threats, into incidents of workplace violence;
  2. Bill 168 requires employers to respond seriously to and to address incidents of violence that are reported to it. Employers cannot disregard, minimize, be indifferent or turn a blind eye to such reports;
  3. Bill 168 requires arbitrators to consider incidents of workplace violence as matters of serious misconduct; and
  4. In considering whether termination is the appropriate disciplinary response for an incident of workplace violence, employers and arbitrators must consider to what extent it is likely that the employee's misconduct will be repeated.

In the past two years, since Bill 168 was enacted, the trend in the arbitration awards has been toward harsher discipline for acts of workplace violence. In H.J. Heinz Co. of Canada and UFCW, Local 459 (Pursel) (Re),5 a discipline case involving a physical fight between two co-workers, Arbitrator Marcotte stated:

"... the enactment of Bill 168 reflects societal concerns about violence in the workplace and in some respects, in counsel's words, it is a 'codification of common sense', such that its occurrence in the workplace is a serious matter that attracts serious discipline."6

Other arbitrators have emphasized that while violent conduct in the workplace may be grounds for significant discipline in appropriate cases, Bill 168 does not mandate discharge as the appropriate penalty when workplace harassment or violence occurs.7 Rather, arbitrators are still called upon to weigh all the factors and to properly assess the circumstances to ensure a proportionate disciplinary response. Nevertheless, in some recent cases arbitrators have upheld lengthy unpaid suspensions in the magnitude of six months or more for violation of workplace violence policies.

Two years after the enactment of Bill 168, there is clear recognition of the need to address workplace violence and harassment. The legislation reflects the view that violence and harassment can be prevented if employers, supervisors and employees seriously heed signs of danger, communicate clearly and act with clarity when it is identified.

From a school board perspective, it is our view that heightened vigilance in respect of workplace violence and harassment is required. In this regard, school administration must not disregard, minimize or turn a blind eye to a report of workplace violence or harassment. Senior board personnel should not be passive or indifferent to a report of workplace violence or harassment. Such conduct could expose the school board and, possibly, school administrators to penalties and offences under the Occupational Health and Safety Act.

School administrators should address relevant allegations with appropriate care and attention and conduct a thorough investigation. It is important to take into account relevant evidence, including the employee's history of discipline, level of seniority, the seriousness of the misconduct, the impact of the misconduct upon others, the likelihood of improvement of the employee's behaviour and the likelihood of restoration of the employment relationship.

It is also important that school personnel be trained and instructed regarding the school board's workplace violence and harassment policies and programs. Such training will serve to enhance awareness and understanding of the importance of ensuring a healthy and safe environment. In particular, school staff should be informed that a personality conflict in the workplace or proper instruction and direction to staff by school administration will generally not constitute workplace harassment.

Footnotes

1 S.O. 2009 c.23.

2 Ontario Ministry of Labour, Safe at Work Today, Issue #7, June, 2011.

3 2012 CanLII 395 (Ontario Labour Relations Board).

4 [2011] O.L.A.A. No. 393.

5 2011 CLB 1872.

6 Ibid., at para 77.

7 See: Georgia Pacific Canada Inc. and Communications, Energy and Paperworkers Union of Canada, Local 192 (2001) CanLII 18182 (Luborsky); Zochem, division of Hudsons Bay Mining and Smelting Co. Ltd. v. CEPU, Local 591G (Harvey Grievance), [2010] OLAA No. 466 (Monteith); and Metro Ontario Inc. and CAW Local 414 (Ritchie Grievance), [2011] OLAA No. 202 (Hinnegan).

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