THE ABC’S OF FILING A VIOLENCE PREVENTION COMPLAINT Union of Safety and Justice Employees Denis St-Jean National Health and Safety Officer Public Service Alliance of Canada May 29, 2018

The Case of “Bullying” that Changed Canada’s Legal Landscape

Pierre LeBrun 12 year employee of OC Transpo (Nov.’86- Dec.’98) Driver, then Parts Clerk Pronounced stutter and facial ticks at times of stress Complained of being teased, mimicked and ridiculed by co-workers to OH nurse, HR worker, doctor, and supervisor Treated for depression Expressed concern about being labeled a rat and retaliation

Growing Pressure to expand the Definition of Violence… We recommend that workplace violence be defined, not only as physical violence but also as psychological violence such as: bullying, mobbing, teasing, ridicule or any other act or words that could psychologically hurt or isolate a person in the workplace. (OC Transpo Inquest – Recommendation #7 – Feb. 2000)

Growing Pressure to expand the Definition of Violence… "It was clearly understood by the Labour Program representatives that harassment would be covered by the definition in cases where actions or inactions could reasonably be expected to cause injury, harm or illness." (Final Report of the Violence Prevention Working Group to the Minister of Labour - 2004 )

Growing Pressure to expand the Definition of Violence… " The new regulations will also address psychological harassment. Employers will be required to develop policies and programs that identify all factors that contribute to workplace violence, including bullying, teasing, and other aggressive and harmful behaviour." (Media Release concerning Violence Prevention in the Workplace Regulations by then Minister of Labour J.-P. Blackburn on June 17, 2008)

What legislation should I refer to with respect to work place violence and conducting investigations? Part II of the Canada Labour Code was designed to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment at federally regulated employers. One of the issues covered by Part II of the Code and by the related Canada Occupational Health and Safety Regulations is the matter of violence in the workplace. Consistent with the “general duty” clause which states in CLC II section 124:   ”Every employer shall ensure that the health and safety at work of every person employed by the employer is protected.” In fact, any issue which may affect health and/or safety is covered by the CLC II, but certain common issues requiring specific attention are expanded on in their own regulation part.

VIOLENCE PREVENTION IN THE WORKPLACE Paragraph 125(1)(z.16) of the Canada Labour Code requires employers under federal jurisdiction to “take the prescribed steps to prevent and protect against violence in the work place.” Part XX of the Canada Occupational Health and Safety Regulations, “Violence Prevention in the Work Place,” contains the prescribed steps that must be implemented.

VIOLENCE PREVENTION IN THE WORKPLACE Purpose of the Regulations to ensure that employers take measures to prevent or minimize the occurrence of violence in the workplace to ensure that workers are protected against workplace violence that workers have a recourse when violence occurs that workers can find assistance if they happen to be exposed to violence

VIOLENCE PREVENTION IN THE WORKPLACE Regulations covers violence occurring in the course of employment over which the employer has control whether this employment takes place within or outside the workplace Violence in the workplace includes: acts between workers acts between an workers and non- workers

VIOLENCE PREVENTION IN THE WORKPLACE Section 20.1 The employer shall carry out its obligations under this Part in consultation with and the participation of the policy committee or, if there is no policy committee, the work place committee or the health and safety representative The employer must ensure the participation of the committee in every obligation required by the regulations. The committee must establish its level of participation within the Violence Prevention Programme

What constitutes “Work Place Violence”? “work place violence” constitutes any action, conduct, threat or gesture, of a person towards an employee in their work place that can reasonably be expected to cause harm, injury or illness to that employee The definition includes all acts of harassment that can be reasonably expected to cause harm, injury or illness Case laws reconfirms that psychological harassment can amount to workplace violence and is one of the worst forms of harm that can be inflicted over time Akon - Attorney General of Canada v. PSAC, 2015 FCA 273

VIOLENCE PREVENTION IN THE WORKPLACE Under Part XX of the Regulations, employers are responsible for: • developing a policy; • identifying contributing factors; • assessing those factors; • choosing controls and prevention measures; • responding to occurrences; and • ensuring employee education and training.

Workplace Violence Prevention Policy Section 20.3 The employer shall develop and post at a place accessible to all employees a work place violence prevention policy setting out, among other things, the following obligations of the employer: (a) to provide a safe, healthy and violence-free work place; (b) to dedicate sufficient attention, resources and time to address factors that contribute to work place violence including, but not limited to, bullying, teasing, and abusive and other aggressive behaviour and to prevent and protect against it; (c) to communicate to its employees information in its possession about factors contributing to work place violence; and (d) to assist employees who have been exposed to work place violence.

Work Place Violence Investigations Part 20.9 (2) of the COHSR states that: “If an employer becomes aware of work place violence or alleged work place violence, the employer shall try to resolve the matter with the employee as soon as possible”. What does this mean? Early resolution with respect to violence in the work place refers to management meeting with the party to the complaint to determine the nature of the issue and identify whether or not there may be an opportunity to resolve the matter. The review should focus on determining how the employee’s concern can best be resolved and the measures that may be necessary to prevent a re-occurrence as quickly as possible.   Unless it is “plain and obvious” that the allegations do not relate to workplace violence, it must be assumed that it does, and the requirements of Part XX of the COHSR must be followed. This would include appointing a competent person under subsection 20.9(3) to investigate any unresolved complaints of workplace violence. Examples could include but are not limited to – physical contact with a person, verbal threats or intimidation, abuse of power, etc.. Confidentiality – Part 20.9 (3), 20.9 (5) (b) - parties may decide to maintain their confidentiality and not release their name to the competent person or ask that it not be released to the health and safety committee.

What criteria are used in appointing a competent person? Part 20.9 (1) of the COHSR sets out the three (3) criteria that exist to be deemed a competent person for the purposes of Work Place Violence Investigations. A Competent person means a person who: is impartial and seen by the parties to be impartial; has knowledge, training and experience in issues relating to work place violence; and has knowledge of relevant legislation. It is recommended that the employer, in consultation with the Policy Health and Safety Committee, Workplace Health and Safety Committee or Representative as applicable, establish a list of Competent Persons ahead of time, that can be drawn from as needed.

What does impartiality mean? Impartiality refers to the fact that all parties to the complaint must agree that the competent person is fair, just and can treat all parties equally. It is to be made clear that “parties” to the complaint do not include witnesses, but rather the individuals directly involved in the incident or situation of work place violence. Furthermore, no party has the right to frustrate the process of identifying a competent person, as the overall objective, which should be kept in mind throughout the process, is to conduct an investigation. As such, there may be legitimate occasions to object to the proposed competent person, which may or may not include, based on the circumstances of the case, imposing the naming of a competent person from within the same organization. However, should an issue of impartiality arise, it is recommended that an open dialogue take place to identify what the parties may be looking for in the naming of an impartial competent person. Should it appear clear that a party is indeed trying to frustrate the process, then such party may be asked to demonstrate/provide a rationale for the objection to the appointment of the competent person in question. The reasons for objecting to the selection of a Competent Person need to be well documented.   Finally, identifying a “competent team” with Employee and Employer representation can often alleviate the issue of impartiality. This does not remove the ability of any of the parties involved to question the impartiality of the “competent team”.

What type of knowledge should the competent person have? Knowledge should include, but not be limited to, knowledge of: the Canada Occupational Health and Safety Regulations, the Canada Labour Code – Part II – Occupational Health and Safety, the Safety and Health Committees and Representatives Regulations, how to write and conduct a root cause analysis. Specific knowledge of “Preventative Measures” should be considered as one cannot make sound recommendations to prevent a reoccurrence of work place violence should they not be familiar with the necessary factors, assessment and prevention measures as outlined in the COHS Regulations. It is to be noted that “a root cause analysis” involves an investigation and a report.

Do parties to the complaint have the right to “support” during the process? Any party to the complaint has the right to support during the process, including but not limited to, Bargaining Agent support. Regulation XX provides that if an employer becomes aware of work place violence or alleged work place violence, the employer shall try to resolve the matter with the employee as soon as possible. It is understandable that an employee may want support at this time and can choose that. It is important that the employee work with the employer and ensure that the other person is there for support only.

I am seeking a personal remedy as result of the violence in the work place I experienced. Should I be filing a complaint in accordance with Part XX of the COHS Regulations? As mentioned earlier, the intent of Part XX of the COHS Regulations is to investigate the incident in order to identify what controls can be put in place to prevent a recurrence of the work place violence (i.e. institute preventative measures). There is no personal remedy provided under Part XX. Should you be seeking personal remedy there are many other avenues: Human Rights Complaint Grievance (No Discrimination, Harassment, Leave Provisions, H&S, etc. Employer Policies WCB ?

What are the essential elements of a Competent Person Investigative Report? The components of a fulsome, but concise investigative report should ideally include: a summary of the investigative findings; an analysis of the root cause for the incident including enough evidence to support the identified root cause; and recommendations for preventative measures. A timeline approach with respect to the history and background of the incident can often assist in developing an objective analysis.

What happens after the report? Under section 20.9 of the COHSR it is made clear that once the report has been issued, the Employer must: adapt and implement any controls to prevent reoccurrence – this should take into consideration the conclusions and recommendations of the “competent person’s” report; provide a copy of the “competent persons” investigation report to the work place health and safety committee or representative including all relevant information that is not prohibited by law and that would reveal the identity of the persons involved, without their consent; and -keep a record of the “competent person’s” report. Before taking any action Employers should wait until the responsible work place committee has reviewed the report and added their recommendations and concerns. It may change the course of action required.

Notification and Investigation Section 20.9 (ALL 3 CONDITIONS MUST BE MET) (6) Subsection (3) to (5) do not apply if: (a) the work place violence was caused by a person other than an employee; (b) it is reasonable to consider that engaging in the violent situation is a normal condition of employment; and (c) the employer has effective procedures and controls in place involving employees to address work place violence.

Workplace Training Section 20.10 (1) The employer shall provide information, instruction and training on the factors that contribute to work place violence that are appropriate to the work place of each employee exposed to work place violence or a risk of work place violence. (2) The employer shall provide information, instruction and training: (a) before assigning to an employee any new activity for which a risk of work place violence has been identified; (b) when new information on work place violence becomes available; and (c) at least every three years.

Workplace Training Section 20.10 (4) At least once every three years and in either of the following circumstances, the employer shall review and update, if necessary, the information, instruction and training provided: (a) when there is a change in respect of the risk of work place violence; or (b) when new information on the risk of work place violence becomes available.

Possible Contraventions Not having a Workplace Violence Prevention Policy in your workplace Not having procedures to adequately respond to workplace violence in your workplace Not reviewing the effectiveness of the workplace violence prevention measures whenever there is a change that compromises the effectiveness of those measures or every three years Not having implemented systematic controls to eliminate or minimize work place violence

Possible Contraventions Not providing health and safety training to health and safety committee members Not providing health and safety training to employees Not keeping adequate records of any health and safety education provided to employees Not providing the committee with a copy of the employer’s Workplace Violence Prevention Measures Review evaluating the program’s effectiveness

Enforcement of the Legal Requirements Employment and Social Development Canada (ESDC), through its Labour Program are responsible for the enforcement of the Canada Labour Code, Part II and all its Regulations. It is important to note that the workplace parties must first attempt to resolve the complaint through the internal complaint resolution process set out in the Code (section 127.1). A complaint cannot be handled if this internal resolution process has not been followed.

LEGAL OBLIGATION TO FILE A COMPLAINT Under section 126(1)(j) of the Canada Labour Code Part II, every worker must report to the employer any situation that he/she believes to be a contravention of Part II of the Code by the employer, another worker or any other person. Section 126(1)(g) further requires that every worker must report to the employer anything or circumstance in a work place that is likely to be hazardous to the health or safety of the employee, or that of the other employees or other persons granted access to the work place by the employer; The employee’s right to complain is limited only by the need to have “reasonable grounds” for the belief.

EMPLOYER OBLIGATION TO INVESTIGATE The employer is required to respond to these reports as mandated in section 125(1)(z.02) of the Code. Worker complaints must be responded to and, more importantly, acted upon. An internal complaint resolution process is established in section 127.1. This internal occupational health and safety complaint resolution process has to be used before other recourses available under Part II of the Code, except for: • the right to refuse dangerous work and • the right of pregnant or nursing workers to temporarily withdraw from dangerous work.

ROLE OF UNIONS IN HARASSMENT AND VIOLENCE PREVENTION Employer’s responsibility to ensure that all employees are provided with a work environment that is safe and free of harassment Union must ensure that this employer responsibility is respected Provide representation to employees in the context of workplace violence and harassment Work with governments, employers, labour organisations and others to protect and enhance those rights

ROLE OF UNIONS IN HARASSMENT AND VIOLENCE PREVENTION Collective Bargaining Mental Health Initiatives – Joint Task Force on Mental Health Identify, assess and control psychosocial risk factors Joint Learning Program Improve on existing provisions Ensure the right to fair and due process Assistance in settling the matter at the earliest stage Leave provisions Involvement of employees (joint committees, equity advocates, social delegates, shop stewards, etc.)

ROLE OF UNIONS IN HARASSMENT AND VIOLENCE PREVENTION Legislative and Regulatory Enhancements Fight for better recognition and compensation for mental injuries (WCB, LTD, tribunals, etc.) Violence prevention and harassment provisions Canada Labour Code Part II (including regulations, enforcement tools, guidance materials, training, etc.) Human Rights Legislation and other legislation

National Joint Council Service Wide Committee on Occupational Health and Safety Collaborative work on Competent Persons & tools Work Place Violence Investigations and Appointing a Competent Person https://www.njc-cnm.gc.ca/s24/s27/d678/en Frequently Asked Questions – Work Place Violence Investigations and Appointing a Competent Person https://www.njc-cnm.gc.ca/s24/s27/d679/en

Canadian Centre for Occupational Health and Safety E-Course, Guides, Fact Sheets, APPS FREE MATERIAL (mostly) http://www.ccohs.ca/

BILL C-65 An Act to amend the Canada Labour Code (Harassment and Violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1

A single, integrated approach to address harassment and violence Expanding the current violence prevention requirements to require that employers prevent and protect against all forms of harassment and violence in the workplace, including sexual harassment and sexual violence. The fundamental objective of the legislation will be to prevent not only physical illnesses and injuries, but psychological illnesses and injuries as well. This will capture the full spectrum of harassment and violence.

VIOLENCE PREVENTION IN THE WORKPLACE QUESTIONS ???