Northern Exposure

Ontario’s Workplace Violence and Harassment Law Overreaches

ACME Insurance Company employs 500 employees and managers at its Toronto head office. They work in a pleasant, some might even say tranquil, office environment. In the 50-year history of the company, there has never been any hint of violent behavior in the workplace. To the contrary, some people find it too quiet there.

Bawring, Bawring & Yawn is an old accounting firm in Ottawa, serving its faithful, established business clients. It has 30 employees and a dozen partners, many of whom have quietly worked together for decades.

Pete’s Wholesale Groceries is a family-owned business that imports and sells European delicatessen products. It consists of a total of 60 employees and managers and operates out of the company’s cramped Mississauga premises. One quarter of the employees are members of Pete’s extended family.

If the Ontario Liberal Government’s recently tabled Bill 168 becomes law, these three typical but mythical companies will need to have workplace violence and harassment policies and programs in place — along with all other employers in Ontario. This is true even if the risk of an incident of workplace violence is one in 10 million. And it’s true even if there has never been a hint of a harassment complaint in the workplace. These workplaces will need to have the same kinds of policies and programs as workplaces where violence and harassment are an inherent risk – such as prisons and police forces.

One needs to ask the question whether such a law would be productive or counterproductive? Is it a mistake for legislators to regulate all workplaces in order to try to prevent behavior that by its nature is deviant and aberrant?

In this writer’s opinion, Ontario’s Bill 168, The Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) 2009, is a classic example of the legislature overreaching – trying to do too much.

In the May 5 issue of this publication, Karen Sargeant summarized the contents of Bill 168. We won’t repeat that summary here. Instead, let’s focus on some the more obvious problems with the bill.

Problems with Bill 168
The biggest problem is that all employers, regardless of size or industry will be bound by the same requirement to institute workplace violence and harassment policies and programs. So small family businesses have basically the same obligation as large, public institutions.

The second problem is that the law will apply to all employers regardless of whether there is any actual history or real risk of violence in the workplace. It will apply even if that risk is as close to zero as anyone could measure. Is this reasonable?

Next, all employers will be required, at least annually, to review these policies. Even if nothing has happened or changed over that period of time. What business owners or busy managers have time for that kind of nonproductive work?

Then the law requires all employers to have violence response programs – even if the risk of violence is negligible!

These programs must include measures and procedures to control risks identified in a mandatory risk assessment. The bill doesn’t say how an employer is to do a risk assessment. One has images of employers trying to assess how “balanced” or prone to violence their employees or customers or people under their care might be – and documenting that so they can prove they did the assessment. Will they try to do this by psychological testing? By amateur psychology? By seat-of-the pants guessing?

Of course no employer can say that there could never be some form of violent behavior – even if it comes right out of the blue. So it appears that everyone will need to have these risk-control programs.

When it comes to harassment, the bill is again overly broad. Workplace harassment is defined as “engaging in vexatious comment or conduct … that is known or ought reasonably to be known to be unwelcome.”  So where does this leave managers whose job it is to correct employees who are guilty of misconduct or plain old poor performance? The manager’s criticisms will generally be unwelcome. And they will generally be vexatious. The Gage Canadian Dictionary defines vexatious as, “vexing; annoying.” A boss’s criticisms or discipline would often fit within that definition.

So if the bill passes, could managers still criticize or discipline their employees? Could they demand better performance? Could they do so repeatedly? Wouldn’t many employees want to use this kind of law as a big shield or stick to ward off such “harassment” by their bosses? And how many bosses would simply back away, for fear of being named in a harassment complaint?

The law currently prohibits harassment based on discriminatory grounds prohibited by the Human Rights Code, or certain other statutes like the Labour Relations Act. One must ask, is it really necessary to outlaw any form of harassment, regardless of how benign the intent may be?

Conclusions
Even if the goal is a laudable one like preventing workplace violence, one cannot through the law prevent behavior that is truly aberrant. We have criminal laws to deal with those guilty of assault or other criminal acts. They’re also supposed to act as a deterrent. We already have health and safety laws that require employers to take “every precaution reasonable in the circumstances for the protection of a worker.” How can a set of policies and procedures do much more?

Legislators do the public a disservice when they try to enact laws that over-reach. Such laws may be simply ignored. Or they may be misused by those with ulterior motives.  This, in turn, is what can lead to disrespect for the law.

Bill 168 is just such a law.  It has not been well thought out.

Contact the author, Brian Smeenk