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WORKPLACE VIOLENCE: LEGAL OBLIGATIONS AND RESPONSIBILITIES. November 30, 2005 Health Care Health and Safety Association of Ontario Eric M. Roher Partner Borden Ladner Gervais LLP phone: 416-367-6004 email: [email protected] What is Workplace Violence?.

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workplace violence legal obligations and responsibilities

WORKPLACE VIOLENCE: LEGAL OBLIGATIONSAND RESPONSIBILITIES

November 30, 2005

Health Care Health and Safety Association of Ontario

Eric M. Roher

Partner

Borden Ladner Gervais LLP

phone: 416-367-6004

email: [email protected]

what is workplace violence
What is Workplace Violence?
  • “Any action, act, omission or incident in which an employee or worker is abused, threatened, harmed, injured or assaulted arising out of his or her employment or work … ”

Norman Keith

Canadian Health and Safety Law

what is workplace violence continued
What is Workplace Violence? (continued)
  • “Any act of aggression that causes physical or emotional harm, including assault (any attempt to inflict physical harm on a worker), threat, verbal abuse, sexual harassment, and racial or religious harassment.”

Ontario Public Service Employees Union

violence includes
Violence includes:
  • Assault (threat or injury)
  • Battery (unlawful force)
  • Threats (intent to harm)
  • Sexual harassment (unwelcome advances)
  • Verbal abuse

Ontario Nurses’ Association

violence also includes
Violence also includes:
  • Name-calling
  • Swearing
  • Hitting
  • Biting, scratching and pinching
  • Using a weapon

British Columbia Nurses’ Union

statistics and trends
Statistics and Trends
  • More than ½ of Registered Nurses have been physically assaulted in the workplace.

Study from the Registered Nurses’

Associations in Manitoba and Ontario

statistics and trends continued
Statistics and Trends (continued)
  • Of 400 Nurses surveyed, 63% had experienced verbal abuse in the past year.
  • 35% experienced attempts at physical harm.
  • 21% had been victims of physical attack.

Nova Scotia Study

statistics and trends continued8
Statistics and Trends (continued)
  • Of 800 Ontario Nurses surveyed, 59% had been physically assaulted on the job in their career.
  • 35% in 12 months prior to the survey.

Ontario Nurses’ Association, 1995

statistics and trends continued9
Statistics and Trends (continued)
  • Younger clinicians and nurses are more often the target of client aggression, due to limited experience and lack of training.
  • Health care workers face similar level of risk to that of police.

(Boyd 1995)

common law principles
Common Law Principles
  • Negligence.
  • Duty of care, breach, causation, and damages.
  • Protect individuals from reasonably foreseeable risks of injury.
  • Legal principles inform violence prevention and emergency response strategies.
burden of proof
Burden of Proof

Burden of proof is on the plaintiff to show, on the balance of probabilities, that the defendant did not meet the standard of care of a reasonable person in given circumstances.

elements of negligence
Elements of Negligence
  • Defendant owed a duty of care to the plaintiff.
  • Defendant breached the duty of care.
  • Defendant’s breach was cause of plaintiff’s injury.
  • Plaintiff suffered actual damage or loss as a result of the injury.
foreseeability
Foreseeability
  • Key in determination of whether an employer had legal responsibility to take action.
  • Not only what an employer knew, but also what it ought to have known.
  • Employer took reasonable steps to reduce risk of injury/accident.
applicable legislation
Applicable Legislation
  • Occupational Health and Safety Act
  • Workplace Safety and Insurance Act
  • Ontario Human Rights Code
  • Compensation for Victims of Crime Act
  • Regulated Health Professions Act
  • Criminal Code (Canada)
laws established
Laws established
  • Violence is unacceptable.
  • Offenders are liable for their actions.
  • Victims or relatives may be compensated for injuries resulting from an act of violence.
  • Duties and responsibilities forall workplace parties.
occupational health and safety act
Occupational Health and Safety Act
  • The OHSA came into force in 1979.
  • Designed to set administrative, legal procedural standards for health and safety in Ontario’s workplaces.
  • Achieves these ends through an “internal responsibility system.”
  • Places responsibility for health and safety on the stakeholders by creating duties for employers, supervisors and workers.
ohsa employer s duties
OHSA – Employer’s Duties
  • Employer shall provide information, instruction and supervision to a worker to protect his/her health and safety – s.25(2)(a).
  • Employer must take every reasonable precaution under the circumstances for a worker’s protection – s.25(2)(h).
ohsa employer s duties continued
OHSA – Employer’s Duties (continued)
  • Employer must prepare and review, at least annually, a written occupational health and safety policy.
  • Must develop and maintain a program to implement that policy – s.25(2)(j).
ohsa supervisor s duties
OHSA – Supervisor’s Duties
  • Supervisor shall advise a worker of any potential or actual danger to the worker’s health and safety of which the supervisor is aware – s.27(2)(a).
  • Supervisor shall provide a worker with written instructions about protective measures and procedures – s.27(2)(b).
  • Supervisor shall take every reasonable precaution in the circumstances for the worker’s protection – s.27(2)(c).
ohsa worker s duties
OHSA – Worker’s Duties
  • Workers are required to report to his or her employer or supervisor the existence of any hazard – s.28(1)(d).
  • The requirement is interpreted to include any threat of violence or presence of a violent person.
ministry of labour inspectors
Ministry of Labour - Inspectors
  • Have the authority to issue work orders and stop-work orders.
  • Have exercised this authority when they deem that a hazard exists because of inadequate staffing levels.
  • Will determine if employee has been provided suitable training and policies to protect from workplace violence.
adjudicators
Adjudicators
  • Have ruled that health care workers are entitled to information about aggressive or violent clients.
  • Have ruled that employers must provide adequate staffing levels as a protective measure.
risk of violence
Risk of Violence
  • Where inspectors determine that workers are exposed to a risk of violence, will direct the employer:
    • to address the risk
    • to assure appropriate workplace program is implemented
    • that the joint health and safety committee be consulted in workplace violence prevention program
ontario human rights code
Ontario Human Rights Code
  • Harassment is a prohibited activity under the Code.
  • Employee has a right to freedom from harassment in the workplace because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or handicap.
human rights code
Human Rights Code
  • Harassment is defined as:

“engaging in a course of vexatious comment or conduct that is known or ought reasonably known to be unwelcome.”

  • Harassment includes inappropriate comments, jokes or suggestions.
  • Sexual harassment includes unwanted touching.
human rights code continued
Human Rights Code (continued)
  • Employers must prevent or stop harassment in the workplace.
  • Workers have a right to file a complaint with the Ontario Human Rights Commission.
  • Employers cannot penalize a worker who has filed a complaint.
criminal code
Criminal Code
  • Assault is determined as:
    • Intentional application of force to another person without that person’s consent.
    • Includes attempts or threats to use force, including gestures that imply a serious threat.
criminal code continued
Criminal Code (continued)
  • If the police lay a charge under the Criminal Code, the Crown Attorney will prosecute the case.
  • The victim will be called as a witness.
  • Standard of proof is “beyond a reasonable doubt”.
risk management
Risk Management

Risk management is the process of planning, organizing and controlling activities that contain an element of risk of injury to the worker.

risk management involves the following steps
Risk Management involves the following steps:
  • Identify and assess exposures to injury.
  • Identify various risk management strategies to address these exposures.
  • Select and implement the appropriate strategy or strategies.
  • Monitor results and make improvements where necessary.
health workers are especially at risk when
Health workers are especially at risk when:
  • working alone, especially at night
  • interacting with violent clients
  • dealing with public complaints
  • providing care and advice that impact on a client’s life
  • handling money or medications
other practices that increase vulnerability to violence
Other practices that increase vulnerability to violence:
  • understaffing in busy clinics or emergency departments
  • letting staff work alone with clients
  • having staff work at night in high crime areas
  • failing to provide sufficient training
  • failing to provide communication devices
develop a workplace violence prevention program
Develop a Workplace Violence Prevention Program

1. Obtain management commitment and employee involvement.

2. Develop a policy, with clear goals and objectives.

3. Conduct a worksite risk assessment.

develop a workplace violence prevention program continued
Develop a Workplace Violence Prevention Program (continued)

4. Put violence prevention, control and response measures in place.

5. Educate employees about the program and train them.

6. Evaluate the program and procedures.

environmental design
Environmental Design
  • Provide a calm atmosphere.
  • Ensure furniture can not be used as a weapon.
  • Keep areas well lighted.
  • Maintain secured areas where public access is limited.
  • Eliminate overcrowding in psychiatric facilities.
  • Install and use security systems.
program objectives
Program Objectives
  • Develop a policy of “zero tolerance” for workplace violence.
  • Describe the standard of behaviour expected of all persons in the workplace.
  • Provide a mechanism that encourages employees to report all incidents promptly.
  • Develop a plan for maintaining security.
program objectives continued
Program Objectives (continued)
  • Develop understood and communicated sanctions for violent acts.
  • Train workers regarding the forms of workplace violence, its effects and how to prevent it.
  • Provide for a procedure to review incident reports.
  • Continually re-evaluate existing safety procedures.
conclusion
Conclusion

To create major changes in the workplace, the organization needs:

  • a sense of urgency;
  • a guiding coalition; and
  • vision and strategy.
conclusion continued
Conclusion (continued)
  • Commitment of the employer to make workplace violence prevention a priority.
  • Organization’s management team must recognize the need to change.
  • Overall will and allocation of resources to create a workplace violence prevention program and communicate it to stakeholders.
slide40
“Someone has to do it and it is

appallingly pathetic that

it has to be us.”

Jerry Garcia

slide41

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