Law Times

Law Times • November 17, 2008 FOCUS PAGE 11 boyfriend in the recovery room of the Hotel-Dieu Grace Hospital in Windsor, the Ontario govern- ment is taking steps to implement the recommendations made by her coroner's jury. On Sept. 17, the Ministry of Labour issued a consultation paper on workplace violence prevention that sought feedback on fi ve questions arising from the tragedy and from a growing awareness of the need to address issues that make the workplace unsafe and stressful, such as vio- lence and harassment. Following the events in Wind- sor, where a long trail of disturb- ing events lead to the stabbing of Dupont and the suicide of the perpetrator Dr. Marc Dan- iel, the Dupont coronial report recognized workplace violence as a health and safety hazard, rec- ommending that all workplaces design and implement a policy to address domestic violence and abuse or harassment as it relates to the workplace and that such policies must be linked to train- ing and actual practice. It further recommended that there be a review of the Occupa- tional Health and Safety Act to examine the feasibility of includ- ing domestic violence, abuse, and harassment as factors warranting investigation and appropriate ac- tion by the Ministry of Labour. It specifi cally asked whether safety from emotional or psycho- logical harm, rather than merely physical harm, ought to be part of the mandate of the ministry. Workplace violence has been found by Statistics Canada to make up 17 per cent of violent incidents in Canada, which equates to about 356,000 inci- dents a year. Most workplace violence is perpetrated by members of the public, with co-workers ac- counting for a much smaller number of incidents and domes- tic violence for only a fraction. At present the Ministry of Labour has a guideline covering physical force, including threats of physical force, and there is a general obligation on employers under s. 25(2)(h) of the OHSA to take all reasonable precautions to create a safe workplace. Many provinces have recently taken steps to defi ne "workplace violence" and Ontario is now em- barking on that process. Meghan Ferguson, of Hicks Morley in To- ronto, expects the Legislature to defi ne what violence means and will be shocked if the legislation is not out within a year. "There needs to be a spe- cifi c defi nition to make it clear to the workplace parties what their obligations are," she says. "The concern is with any legisla- tion being too restrictive, tying employers' hands in addressing specifi c situations. If there are domestic disputes between two co-workers, there are differ- ent ways of dealing with that. They have to consider whether there is a restraining order or a peace bond and the conditions Remedies for the hostile work environment T BY JUDY VAN RHIJN For Law Times hree years after the vio- lent murder of nurse Lori Dupont by her former that might be attached to that. They have to investigate indi- vidual circumstances and tailor a response." The consultation paper posed fi ve questions. Firstly, it asks whether the defi nition of violence as "the attempted or ac- tual exercise, by a person, of any intentional physical force that causes or may cause injury to a worker, and includes any threats which give a worker reasonable cause to believe he or she is at risk of physical injury," is appro- priate. It canvasses the idea of a spe- cifi c requirement for workplace violence prevention programs and suggests extra precautions be imposed on particular sectors with a higher risk of violence. It also fl oats the idea that em- ployers may be required to address the risk of domestic violence, when it may enter the workplace. The fi nal question addresses a worker's right to refuse to work, which is currently confi ned to situations where the physical conditions of the workplace, such as machines and equip- ment, pose a threat. It asks if those grounds should be ex- panded to include violence and the threat of violence. While the consultation paper touches on objectionable behaviour such as bullying and teasing that may escalate into threats of violence or physically violent behaviour, there is no proposal for the inclu- sion of that behaviour in legislation. Ferguson sees the focus on physical violence as uncontro- versial. "Most people agree that employers do have to assess the risk of violence. I've never heard an employer say, 'I don't have to do anything.'" Blaine Morin, a National Meghan Ferguson sees the fo- cus on physical violence as un- controversial. Health and Safety Representative at CUPE, says that since the Dupont case, there has also been a recogni- tion of the need to address domestic violence in the workplace. "The coroner's inquest found there were 83 different times when the employer should have inter- vened, but because it was domestic violence, they blocked it out." Suggestions that any new leg- islation should also defi ne harass- ment and work stress as workplace health and safety hazards are far more diffi cult to grapple with. Morin and his colleagues at CUPE have been pushing the ef- fects of excessive workplace stress on mental health as a violation of health and safety laws, but admit that they are getting hardly any recognition or assistance. "When we talk stress, we talk by-products, like bullying and [ostracism]. When the Ministry of Labour inspectors receive com- plaints that don't involve physi- Labour Relations Board Remedies in Canada, Second Edition Jeffrey M. 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"We have had wins at the Compensation Board but they've been overturned. The defi nition of stress there involves post-trau- matic stress disorder or psycho- logical damage. The stress caused by innuendo and threats is seen as too general," Morin says. Ferguson points out that the Workplace Safety Insurance Act only compensates mental stress if it is caused by an acute or sudden event, but that many employ- ers have a short-term or long- term disability policy that covers stress. She sees the inclusion of references to excessive stress in legislation as problematic. "What is a stressful situation? Is it just that they don't like the work the manager has assigned to them, or are they generally stressed because of life events? You need proof that stress arises from a workplace incident," says Ferguson. Morin has had three meet- ings with the government as part of the new consultation process. "The big problem in their minds is how do we measure it?" He agrees that the term "stress" it- self is overused. "Everyone has stress. It needs to be defi ned and broken down. In my experience, if you don't defi ne the by-prod- ucts of stress, you end up in the argument that stress is good for you. Some people suggest it is just part of the job," says Morin. LT Under-reporting is a great concern to Morin, and at a time when there are dramatic changes in the workforce and an economic downturn, it may be- come even more chronic. "My concern is that we are not getting enough of a snapshot, and that too many people are falling through the cracks."

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