Respectful Workplace: Complying with Bill 168/Bill 132

By the completion of this course, you'll be familiar with:

Background Bill 168

Origins of Bill 168

Background: Bill 168

  • Bill 168, which was developed and implemented to outline responsibilities of all parties in the workplace, especially employers, to ensure safe workplaces that are free from violence and harassment.
  • A number of high profile violent occurrences led to this legislation.
  • Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace), became law on December 10, 2009. 
  • Bill 168 outlines violence and harassment obligations under Ontario’s Occupational Health and Safety Act (OHSA).  Under Bill 168, employers were required to create and implement workplace violence and harassment policies, programs to implement such policies, and engage in assessments designed to measure the risk of workplace violence.

Bill 168 Obligations

Employer Obligations

  • Employers must be committed to building and preserving a safe, productive and healthy working environment for your employees based on mutual respect. 
  • As a responsible employer, you will not condone and will not tolerate acts of violence or harassment against or by any your employees. 
  • You must take every reasonable precaution and implement measures to prevent violence and protect all your employees from potentially violent situations. 

Workplace Violence Definition

Violence, defined

Under Bill 168 Workplace Violence is defined as: 

  • The exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker. 
  • An attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker. 
  • A statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker

There are four (4) types of violence

Harassment Definition

Harassment Definition

  • “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”
  • Any behaviour, in the form of words, gestures, or actions, generally repeated, that has undesired sexual or racial connotations, that has a negative impact on a person’s dignity or physical or psychological integrity, or that results in the person being subjected to unfavourable working conditions.
  • Usually, harassment can be distinguished from normal, mutually acceptable socializing.  It is important to remember it is the perception of the receiver of the potentially offensive message be it spoken, a gesture, a picture or some other form of communication which may be deemed objectionable or unwelcome that determines whether something is acceptable or not. 
  • It creates an uncomfortable work environment and has no place in employee relationships.
  • THIS HAS BEEN EXPANDED UNDER BILL 132 AND WILL BE DISCUSSED FURTHER ON

Program Development

Program Development

  • Section 32.0.2 of the Act requires employers to develop a program to implement the workplace violence policy, and the workplace harassment policy. 
  • The program must include measures to control risks of workplace violence identified in a risk assessment that is required under Bill 168 to summon immediate assistance when workplace violence occurs, and for workers to report incidents or threats of workplace violence.  
  • The program must also set out how the employer will deal with incidents, complaints and threats of workplace violence and harassment.

Providing Employees Information

Information to Employees

  • Section 32.0.7 requires employers to provide their employees with information and instruction on the contents of the workplace harassment policy and program. 
  • The policies must be posted in your workplace and reviewed by the employer annually. 
  • Each employer must designate an employee to act as a Workplace Coordinator (in this case, your Health & Safety Representative) with respect to workplace violence and harassment issues. 
  • The name of the Workplace Coordinator must be communicated and should be someone at a senior level, who has responsibility for handling confidential information.

Posting Requirements

Posting Requirements

  • The employer must develop comprehensive policies and procedures with respect to Workplace Violence and Workplace Harassment, a copy of which must be posted in a place where all employees will have access to it, such as a lunch room.  Posting your policy on the Intranet is not considered sufficient. 
  • Employers with less than five employees must comply to all of the Bill 168 requirements except they do not have to post their policy. 
  • If you have more than one location, then you must post your policy in all locations whether it be an office, a warehouse, distribution centre, etc.

Training

Training Requirements

  • Bill 168 training requirements include harassment in all forms, including bullying, and violence in the workplace, including domestic violence.  
  • Employees must be trained on the harassment and violence policies. 
  • Records when employee completes training must be kept.

Risk Assessment

Know Your Vulnerability

  • Section 32.0.3 of the Act requires employers to assess the risk of workplace violence and to report the results of the assessment to the Joint Health and Safety Committee or to a Health and Safety representative. 
  • The risk assessment can either be undertaken by the Workplace Coordinator or by having each employee complete a questionnaire. 
  • The Workplace Coordinator (Health & Safety Representative) analyzes the responses and prepares a report for the Joint Health and Safety Committee.

Under the definition of Workplace Violence it is only physical contact that meets the definition of violence.

  • True
  • False

Which of the following is a requirement of employers under Bill 168?

  • Employers must be committed to building and preserving a safe, productive and healthy working environment for your employees based on mutual respect.
  • To not condone and will not tolerate acts of violence or harassment against or by any your employees.
  • To take every reasonable precaution and implement measures to prevent violence and protect all your employees from potentially violent situations.
  • All of the above

Employees with less than 5 employees have no obligations for Bill 168

  • True
  • False

What determines whether an act or statement if offensive?

  • Perception of the person to whom the act or statement was directed
  • Others who agree it is offensive
  • The supervisor

Complaints & Investigations

Response to Harassment

Employee

  • Tell the harasser his/her behaviour is unwelcome and as him/her to stop
  • Keep a record of incidents (date, times, locations, possible witnesses, what happened, your response).  You do not have to have a record of events in order to file a complaint, but a record can strengthen your case and help you remember details over time.
  • File a complaint.  If after asking the harasser to stop his/her behaviour, the harassment continues, report the problem to your Supervisor or Workplace Coordinator.
  • To file a formal complaint, you must submit in writing.

Employer Response

  • Once a complaint is received, it will be kept strictly confidential.  

  • An investigation will be undertaken immediately and all necessary steps taken to resolve the problem

  • Both the complainant and the alleged harasser will be interviewed, as well as all witnesses.

  • If the investigation reveals evidence to support the complaint or harassment, the harasser will be subject to appropriate discipline up to and including dismissal.

  • If the investigation fails to find evidence to support the complaint, there will be no documentation concerning the complaint placed in the file of the alleged harasser.

  • Regardless of the outcome of a harassment complaint made in good faith, the employee lodging the complaint, as well as anyone providing information, will be protected from any form of retaliation.

  • UNDER BILL 132 OUTSIDE IMPARTIAL INVESTIGATORS OR MINISTRY OF LABOUR INVESTIGATORS MUST BE BROUGHT IN IF THE CIRCUMSTANCES WARRANT (COVERED IN bILL 12 SECTION)

Domestic Violence

Signs of Domestic Violence

  • Excessive absences or lateness.
  • Frequent unexplained bruises. 
  • Noticeable change in the use of makeup.
  • Lack of concentration or difficulty making decisions.
  • Inappropriate clothes that conceal.

An employer becomes aware, or ought reasonably to be aware, that domestic violence that would likely expose a worker to physical injury may occur in the workplace, that employer shall take every reasonable precaution in the circumstances for the protection of the worker.

Response to Violence

Employee Response:

  • When confronted with a violent situation in the workplace:
  • Do not try to solve the conflict
  • Do not confront or respond to the assailant in any way
  • Immediately remove yourself from danger and leave by way of the nearest exit and go to a safe area. 
  • If it is safe to do so, find your Supervisor and report the incident immediately.  If this is not possible, go to the front office and report the incident.  Remain in the office until you are given further instruction.
  • If confronted with a violent situation while working off-site, go immediately to a safe area, and use your cell phone to contact your Supervisor who will give instructions on how to proceed.  If the situation warrants, call 911.

Employer Response:

  • Upon receiving a report of workplace violence:
  • Go immediately to the scene and assess the situation
  • Assure the immediate safety of all workers in the vicinity
  • If it is safe to do so, talk to the assailant and try to resolve the conflict
  • If the situation is dangerous, do not approach the assailant.
  • Call 911 and follow Company evacuation procedures if warranted

Investigation

Investigation:

  • Upon receipt of a formal complaint of workplace violence, the Supervisor in conjunction with the Health & Safety Representative, will immediately proceed with an investigation.
  • All parties involved, including witnesses, must complete an incident report and cooperate during the investigation.
  • If there is sufficient evidence to support a finding of violation of this policy, the Supervisor will notify the Respondent and Complainant that an internal investigation will take place.
  • The Supervisor, with assistance from management staff members will immediately undertake a formal investigation and prepare a written report of the investigation’s findings.  A copy of this report will be forwarded to the Plant Manager and the HR department and the Health & Safety Committee.
  • A decision whether to dismiss or act upon the report will be made and the Complainant and Respondent will be advised of the outcome of the investigation.

Confidentiality

Confidentiality

  •  Strict confidentiality is required to properly investigate an incidentand to offer appropriate support to all parties involved.  Any individual who becomes aware of an incident of violence should not disclose the details of the incident to any third party without prior consultation. 
  • Gossiping about an incident seriously undermines the privacy of all parties involved

Consequences

Corrective Action and Discipline:

All acts of workplace violence are subject to discipline up to and including dismissal.  The following conditions will be considered when determining appropriate discipline:

                                    a)   the impact of the incident on the Complainant;

the nature of the incident;

the degree of the aggressiveness and physical contact;

the period of time and frequency of the incidents;

the vulnerability of the Complainant.

Retaliation and False Accusations

Non-Retaliation

All persons involved in the processing of a complaint will ensure  that the Complainant is neither penalized or subjected to any prejudicial treatment as a result of making the complaint. Disciplinary action will be taken against any person who takes any reprisal against a person who reports workplace violence.

False Accusations:

A person who submits a complaint in good faith, even where the complaint cannot be proven, has not violated this policy.  If an investigation results in finding that the Complainant falsely accused the Respondent of workplace violence knowingly or in a malicious manner, the Complainant will be subject to appropriate discipline up to and including dismissal.

In a violent situation, what must the victim do?

  • Call 911 if the situation is that serious
  • Challenge the perpetrator
  • Call for other employees

As long as an employee files a complaint in good faith, no discipline action will be taken against them if the allegations are unfounded.

  • True
  • False

The Impact of Bill 132 on the OHSA

Origins of Bill 132

  • Bill 132 is otherwise known as the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment) 2016 
  • It is amendment to Bill 168 and has been implemented to tackle growing concerns over the safety of workers at risk of sexual violence  and harassment in the workplace.     

  

The Bill 132 Updates

As of September 8th, 2016 the following changes were made and implemented to the Occupational Health & Safety Act, or OHSA: 

The Occupational Health & Safety Act, OHSA: Updated Responsibilities and Powers  

  • Mandatory training for all employees 
  • Clearly defined mechanisms for making a complaint 
  • Expanded Investigation & reporting procedures 
  • Investigators are training in how to respond and investigate 
  • Disclosure requirements 
  • Ministry Inspector can order an investigation


Mandatory Training

  • By completing this e-Learning module all employees will be considered trained under the obligations of the Act. 
  • Most employers had fulfilled their obligation under Bill 168.

Complaint Procedures

These are outlined in the Complaints & Investigations section of this module, they are comprehensive and ensure the information is set as to the procedures.

Investigations

  • All circumstances will be investigated in a manner appropriate to the circumstances. Where it is necessary the employer should refer to outside, third party investigators (i.e. an allegation is made against a supervisor/business owner). 
  • Other circumstances may warrant an outside investigation such as the employer ensuring impartiality and no bias in the organization.
  • When choosing outside investigators the employer has an obligation that they are trained experienced in these situations.  If the employer has an internal investigator that individual must be properly trained as well. The MOL has a list of certified trainers. 
  • Where necessary (very serious circumstances) the employer should involve the Ministry of Labour to ensure the integrity of any situation.

Outcome of Investigations

Informing the Parties

  • Employers need to now inform parties in writing as to the results of an investigation, as well as “any corrective action” resulting from the investigation. 
  • In most circumstances, it will likely be unnecessary to disclose more than a summary of the findings (whether substantiated or not) and if corrective action will be taken. 
  • For purposes of confidentiality and protecting ongoing relationships and reputations, in most circumstances it is likely best to disclose only the fact that corrective action will be taken without specifics.

Sexual Harassment Definition Under Bill 132

Harassment in the Workplace 

Under Bill 168 Workplace Harassment is defined as:

“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”

Bill 132 Defines Workplace Sexual Harassment 

Engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome

Making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome

Investigations should only be conducted by internal individuals as they know the situation best

  • True
  • False

The definition of sexual harassment is now mandatory for employers to include.

  • True
  • False

Employees have no responsibility when they witness other employees being =harassed or threatened

  • True
  • False

Ensuring a Compliant Workplace

Interpreting the OHSA

Upholding the IRS

The IRS in the context of the OHSA is the Internal Responsibility System; this concept maintains that all parties in the workplace have an obligation to maintain a healthy and safe work environment and do their part to behave in ways that respect themselves, their space, and others around them. The specific duties and obligations however are clearly outlined, and are governed by the  OHSA and maintained by the Ministry of Labour.  

The Responsibilities of the Employee

Employee Duties: 

  • Employees are individually responsible for their own actions and in particular for not harassing, acting or threatening to act violently
  • Abiding by the Company’s Policy and program on respectful workplace
  • Calling 911 when immediate assistance is required to deal with a situation involving workplace violence
  • Reporting incidents of workplace harassment or violence, including attempted or threatened workplace violence and including domestic violence that may flow into the workplace
  • Reporting concerns about physical conditions in the workplace to their supervisor or H&S Representative
  • Cooperating as requested in any investigation into workplace violence and or harassment

The Responsibilities of the Supervisors and Managers

Manager/Supervisory Duties: 

  • Promoting an environment that does not tolerate violence
  • Providing direction to appropriate resources for employees who are experiencing workplace harassment or violence, (such as Employee Assistance Program)
  • Providing workers with information and instruction on the contents of the Respectful Workplace policy and program and any measures and procedures in place for controlling any risks that may arise from the individual worker’s work or workplace
  • Implementing the measures and procedures to prevent violence and harassment
  • Working with the relevant individuals as requested in any investigation into workplace violence and or harassment

The Responsibilities of the Employer

Under Bill 168, the following updates to Employer responsibility were amended

  • The requirement to keep workers informed of their rights through written, posted, and readily accessible policies, procedures, and all applicable legislation 
  • The employer must implement programs with respect to workplace violence and harassment, its not enough just to write a policy
  • The employer must annually assess and manage risks of workplace violence and harassment to ensure the safety of its workers
  • The employer’s efforts to ensure safety of workers includes workers in the workplace, or if the employer should reasonably be aware of instances of domestic violence, protecting the safety of the worker  

While the principle of the IRS upholds the spirit of the law, the greatest onus of responsibility lies with the employer! 

Employer Duties: 

  • assess the level of risk in the workplace
  • assess the existing policies and programs in place to prevent such hazards
  • if the existing risk is high, and/or the policies and programs don’t sufficiently include provisions about sexual harassment, the Employer is obligated to amend existing policies and programs, or create entirely new and extensive safety provisions

The Responsibility of the Health & Safety Representative

The Health and Safety Certified Members & Representatives 

The Jones & O'Connell Health & Safety Representatives are involved in the process of developing the policies and programs surrounding sexual violence and harassment in the workplace

It is the duty of Supervisors and Managers to ensure that employees...

  • They have no responsibilities, employees are responsible for themselves
  • To promote a Respectful Workplace Policy
  • To let employees resolve any harassment

Employees have no responsibility when other employees are being harassed or threatened

  • True
  • False

The Benefits of a Respectful Workplace

Respectful Workplace Policy

What is a Respectful Workplace Policy?

Supervisor:

  • Act respectfully towards other individuals while at work and participating in any work-related activity.
  • Promote a harassment free workplace.
  • Ensure that this policy is explained to all employees under your direct supervision.
  • Immediately investigate all reported incidents of workplace harassment and ensure that appropriate action is taken.

Employees:

  • Act respectfully toward other individuals while at work and participating in any work-related activity.
  • Report all incidents of workplace harassment and complete an incident report.
  • Attend any training or information sessions provided by the employer to reduce workplace harassment.
  • Cooperate during Company investigations of workplace harassment.

Why is a healthy, safe workplace such a benefit?!

What you can expect from contributing to a safe workplace! 

  • Maintains a respectful workplace  
  • Reduced rates of absenteeism and turnover 
  • Avoiding nasty fines and legal action 
  • Promotes a culture in your workplace that values employees