Osgoode Labour & Employment Law Society

Introduction

After more than a decade of intensifying debate around the issue of workplace violence, it seems Parliament has finally taken notice with Bill 168.  Unfortunately, this one-size fits all solution has much to be desired.  Apart from the criticisms that Bill 168 does not do enough to protect workers from emotional or psychological violence prevalent in some industry sectors, the bill also seems to impose a needlessly heavy burden on other workplaces, which do not share the same risks of violence as those that made the Bill necessary in the first place.

Concern about One-Size-Fits-All Design of Bill 168

Workplace violence undoubtedly poses a real and serious threat in some workplaces, particularly those in the service sectors.  Nevertheless, workplace violence is certainly not a uniform threat.  The Ministry of Labour has already identified many susceptible workplaces, which carry an inherent risk of violence, including healthcare service, social service, retail, hospitality, financial institutions, education, and transportation.  The vast majority of workplace violence incidences fall into these identified industries, with seriously volatile incidents generally uncommon.

Blanketing the burden imposed by Bill 168 without regard for the differences between workplaces could have serious effects on the ability of many businesses and industries to produce efficiently and remain competitive, especially given the uneasy state of the economy.  Although, Ontario is not the first jurisdiction in Canada to incorporate laws dealing with the potential for violence into its health and safety legislation, Bill 168 will likely do little to help Ontario attract further business, particularly in manufacturing.  The additional onus it creates represents yet further legislative creep, adding more unwarranted burden to those employers in industries where very few problems existed.

Bill 168 and the Right to Refuse Unsafe Work

Among the proposed amendments to the Occupational Health and Safety Act (OHSA) requiring employers to help prevent workplace violence is a proposed amendment to the ‘right to refuse unsafe work.’  Currently, legislation allows a worker to refuse work on the basis of perceiving an unsafe physical condition, machine, device or thing in the workplace, aspects of the workplace within the employer’s control.  Despite arguments that the mental state of an individual is outside the employer’s control, Bill 168 would add the word ‘person’ to the mix; affording workers a new basis to refuse potentially unsafe working conditions.  However, Bill 168 fails to address many of the challenges facing employers trying to comply with the Act, leaving an abundance of unanswered questions and the continued presence of uncertainty.

Complications with Unsafe Work Investigations

Compliance with the OHSA requires investigation of work refusals, while the worker remains in a safe place until the investigation is completed.  While employee work refusals regarding an alleged risk of danger due to physical conditions or things in the workplace can almost always be determined objectively, allegations of personal intent to do harm can only be evaluated subjectively, except for the most blatant incidences of malice. How then will the inspectorate determine that the refusing worker legitimately had ‘reasonable grounds’ for the continuance of refusal?  How can an employer remedy refusals stemming from over-sensitivity without causing undue disruption to the workplace?  What constitutes abuse and falls short of the protection of the Act?   Moreover, abuse of the right to refuse is a particular concern to manufacturers, where such refusals can shut down certain operations, relieving affected workers of their duties and earning the complainant a certain degree of praise from his/her coworkers.

While work refusals due to violence in the high-risk workplaces identified by the Ministry generally stem from the inherent risks of violence in those workplaces, most work refusals due to violence in other workplaces would likely stem from co-worker disputes.  In manufacturing, work refusals due to violence are expected to almost exclusively originate from co-worker altercations.  Although co-worker disputes very rarely end in violence, Bill 168 would still require an employer to conduct an investigation in response to a work refusal.

Co-worker altercations present yet another set of challenges: the topic of dispute may be personal in nature, both parties may have contributed to the confrontation, facts may be difficult to ascertain as well as privacy issues may need to be considered.  Moreover, if the refusing worker is discovered to be culpable through contributing to or instigating in the original altercation, not an uncommon situation in manufacturers, can he/she be subject to discipline notwithstanding the Act’s reprisal prohibition?  Bill 168 removes the employer’s ability to deal swiftly with these co-worker issues, but offers little guidance on these questions.

Conclusion

All these issues and questions barely scratch the surface of the challenges facing Bill 168.  In response to such critiques, Parliament should consider a workplace specific approach to workplace violence legislation.  The Ministry of Labour has already recognized workplace contexts which have an inherent risk.  In fact, many provisions in the Occupational Health and Safety Act are already tailored to the specific risks associated with certain workplaces and industries.  A workplace specific approach can be crafted to avoid unnecessary burdens on employers where few problems exist, while more fully addressing the challenges to implementation of the proposed legislation.

Melissa Fedsin