Workplace Wire

By: Cheryl Edwards and Daniel Mayer

For readers following the progress of ever-expanding OHS statutory obligations relating to violence and harassment, there is a new development worth note in B.C.

Most Canadian jurisdictions have now defined workplace violence as a hazard and set out obligations such as requirements for policies, risk assessments, training and other proactive measures in OHS legislation (New Brunswick, NWT, Yukon and Nunavut remain exceptions. Quebec deals with the broad matter of psychological harassment in labour standards legislation). A number of jurisdictions (Ontario, Saskatchewan, and Manitoba) have added “harassment” as a specifically defined concept, sometimes echoing human rights prohibited grounds harassment, sometimes not, requiring OHS policies and further proactive action.

No jurisdiction has yet included a definition of “bullying” as a matter requiring action or protection under OHS statutory obligations. However, B.C. is now purporting to require new steps of employers relating to “bullying and harassment”, without OHS legislative change. This follows closely on the heels of expanded compensation for workers for mental stress arising from bullying or harassment in B.C.

The New WorkSafeBC Expectations

Three new WorkSafeBC policies developed to assist in preventing and addressing harassment and bullying in the workplace came into force on November 1, 2013. One policy was designed for each workplace party: policy D3-155-2 for employers, policy D3-117-2 for supervisors and policy D3-116-1 for workers.

These three policies were made pursuant to each workplace party’s general duties to ensure a healthy and safe workplace (under the Workers’ Compensation Act). Since the policies were made under the general duty provisions, amendments to the Workers’ Compensation Act were not made. The policies define harassment and bullying, and explain the reasonable steps each workplace party is expected to take to prevent and address workplace harassment and bullying.

Harassment and Bullying Defined

Harassment and bullying is defined as follows in all three policies:

1. Includes any inappropriate conduct or comment by a person towards a worker that the person knew or reasonably ought to have known would cause that worker to be humiliated or intimidated, but
2. Excludes any reasonable action taken by an employer or supervisor relating to the management and direction of workers or the place of employment.

Note that the definition of “person” is very broad. It includes any individual interacting with workers, whether or not they are a workplace party (such as a client). It also appears to be very similar to the “harassment” definition in Ontario, and far less extensive that the ones in Saskatchewan and Manitoba OHS legislation.

“Reasonable Steps” for Employers

WorkSafeBC will be expecting employers to develop harassment and bullying policies. Also, employers are now expected to train supervisors and workers on how to respond to harassment and bullying in the workplace.

An employer’s harassment and bullying policy should include the following and be reviewed annually:

1. Procedure for workers to report incidents of workplace harassment and bullying, including how, when, and to whom incidents should be reported (with a specific procedure if the supervisor or employer is the harasser or bully);
2. Procedure for how the employer will respond to workplace harassment and bullying, which includes a detailed investigation procedure (such as how and when the investigation will be carried out, what will be included in the investigation, and the roles of each party during the investigation);
3. Process of informing workers of the harassment and bullying policy; and
4. Training supervisors and employees regarding how to properly comply with and follow the workplace harassment and bullying policy.

In terms of workers and supervisors, both must refrain from engaging in harassment or bullying, apply and comply with the employer’s harassment and bullying policy, and with respect to workers specifically, report incidents of workplace harassment or bullying.

To ensure compliance with the new policies, WorkSafeBC has published an online toolkit, which is available here: http://www2.worksafebc.com/Topics/BullyingAndHarassment/Home.asp

Questions have already been raised about the enforceability of these provisions. WorkSafeBC is not apparently planning an “enforcement blitz” regarding the new policies. They have stated, however, that enforcement officers will respond to complaints and focus on education first. They will issue compliance orders and issue fines if employers continue to refuse to comply. This is reminiscent of the experience of employers in Ontario prior to enactment of clear provisions in OHS legislation in 2010. Prior to specific provisions in Ontario’s Occupational Health and Safety Act, employers regularly faced orders to engage in workplace assessments, create policies and conduct training under the OHSA general duty clause.

For information respecting OHS-related workplace violence, harassment and bullying prevention obligations, policies, training and other expectations for employers, please contact Daniel Mayer dmayer@heenan.ca (Ontario), Cheryl A. Edwards cedwards@heenan.ca (Ontario) or Jillian Frank jfrank@heenan.ca (B.C. and Alberta) of our national OHS and Workers’ Compensation Practice Group.