Transcript Slide 1

This webinar is brought to you by
CLEONet
www.cleonet.ca
CLEONet is a web site of legal information
for community workers and advocates who
work with low-income and disadvantaged
communities in Ontario.
About our presenter…
Long-time educator, activist and lawyer, Zahra Dhanani is the
Legal Director for the Metropolitan Action Committee on
Violence Against Women and Children (METRAC), an agency
that ensures access to justice for women, youth and children
facing the threat of violence.
METRAC’s Workplace Justice Series
Bill 168: Ontario's New
Legislation on Harassment and
Violence in the Workplace
Presented by
Zahra Dhanani
Legal Director, Justice Program
METRAC’S Workplace Justice Series
Exotic Dancers Experiencing
Workplace Sexual Violence
and Harassment
METRAC’S Workplace Justice Series
METRAC’S Workplace Justice Series
Workplace Sexual Violence
& Harassment
METRAC’S Workplace Justice Series
Domestic Workers & Live-in
Women Health Care Workers
Caregivers Experiencing
Experiencing Workplace
Workplace
Sexual
Violence
and Harassment
"Safer
for Women,
Safer for Everyone"
and Harassment
METRAC’S Workplace Justice Series
Women Migrant Farm Workers
Experiencing Workplace
Sexual Violence and Harassment
METRAC’S Workplace Justice Series
Women Temporary Help Agency
Employees Experiencing
Workplace
Sexual Violence and Harassment
Just Legal Information…Sorry!
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I CAN try and answer general legal
information questions.
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I CANNOT give advice on individual cases.
"Safer for Women, Safer for Everyone"
Context: Violence at Work
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90% of women working outside of the home will experience sexual
harassment at some point in their work.
70% of individuals suffering from DV are victimized at work
(harassing phone calls, showing up at work)
Serious Issue “There is a growing world wide concern that
violence is one of the most serious Occupational Hazards of the 21st
century.”
Action taken only when there is a physical incident.
Something that builds and earlier signs exist.
Not an individual issue, rooted in systems.
This is a Gendered Issue: Lori Dupont/Theresa Vince
"Safer for Women, Safer for Everyone"
Legislative Framework: Workplace Issues
 Ontario
Human Rights Code
 Occupational Health and Safety Act
 Employment Standards Act
 Workers Compensation Act
 Workplace Safety and Insurance Act
 Canada Labour Act
 CCC, IRPA, etc.
"Safer for Women, Safer for Everyone"
Canada’s Labour Act, Canadian /Ontario Human Rights
Commission….Harassment:
Preparing appropriate policies;
 Monitoring their effectiveness;
 Updating them as required;
 Ensuring all employees are aware of the
policies; and
 Providing anti-harassment training
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* Canada Labour Code: Has specific language on sexual harassment: employer obligation
to make sure employees know how to bring the harrassment to their attention
"Safer for Women, Safer for Everyone"
Workplace Sexual Violence and Harassment
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Sexual Harassment does not have to be sexual. It also includes
harassment that occurs because you are a woman. Making
stereotypical comments about a person’s gender can be a form
of sexual harassment.
Often a pattern of behavior over a period of time.
Can include: Degrading words, pictures, objects or gestures,
physical contact and sexual demands.
Has largely been dealt with under Human Rights Codes
and not Occupational Health and Safety Act.
However, high profile deaths in workplaces have lead to
demands for legislation with more force on the issue.
"Safer for Women, Safer for Everyone"
Bill 168: 14 Year Chronology of Legal Change
Compilation by Michelle Schryer: Chatham-Kent Sexual Assault Support Centre
June 2, 1996: Theresa Vince murdered at work
by her Supervisor who then killed himself
(SEARS knew about the Sexual Harrassment
for over 1 ½ yrs)
 November, 1997: Inquest into the Murder of
Theresa Vince
 24 recommendations: (1) Occupational Health
and Safety Act needs to be utilized.
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"Safer for Women, Safer for Everyone"
Cont’d…
Spring 1998: Should Sexual Harrasment be
included in the OHSA?
 June, 2001: Bill 78 (died)
 May, 2003: Bill 55 (died)
 October, 2004: Bill 126 (died)
 November, 2005: LORI DUPONT murdered
 November, 2005: Bill 35
 December, 2005: Bill 45
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"Safer for Women, Safer for Everyone"
Cont’d…..
December, 2007: Dupont Inquest lead to 26
reccommendations.
 December, 2007: Bill 29 (died)
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Bill 168
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December, 2009:
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June 15, 2010: Comes into effect
"Safer for Women, Safer for Everyone"
Bill 168: Definitions
Subsection 1(1) of the OHSA is amended by adding:
 Workplace Harassment is defined as:
Engaging in 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.
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Workplace Violence – means:
(a)The exercise of physical force by a person against a worker, in a workplace, that causes or
could cause physical injury to the worker
(b)An attempt to exercise physical force against a worker, in a workplace, that could cause
physical injury to the worker
(c)A statement or behaviour that is reasonable for a worker to interpret
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as a threat to exercise physical force against the worker, in a
workplace, that could cause physical injury to the worker
"Safer for Women, Safer for Everyone"
Bill 168: Important Notes
Employers are required to take proactive
measures in regards to actions that meet the
above criteria.
 The definition of workplace harassment is not
limited to the prohibited grounds within the
Human Rights Code.
 Definition of workplace violence may lead to
claims of psychological harm.
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"Safer for Women, Safer for Everyone"
Bill 168: At a Glance
The proposed legislation will require employers to develop:
 Violence and harassment policies and programs
 Employee reporting procedure (incidents, threats and complaints)
 Incident investigation procedure
 Emergency response procedure (violence only)
 Process to deal with complaints, incidents and threats
 Employers are required to complete a risk assessment of violence
hazards that may arise from the nature of the workplace, the type of
work or the conditions of work before developing a program.
 The ministry’s tag line for this Bill on its communications material
is: “Violence and harassment have no place in the workplace.”
"Safer for Women, Safer for Everyone"
Policies: s. 32.0.1
Prepare written policies dealing with
workplace violence and harassment. In light
of the new definitions, existing policies will
need to be modified.
 Review the policies as often as possible, but
AT LEAST annually.
 Posted Conspicuously! (This does not apply if
the number of employees is 5 or fewer)
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"Safer for Women, Safer for Everyone"
WORKPLACE VIOLENCE PREVENTION
PROGRAM: s. 32.0.2 and s. 32.0.6
Employers are required to develop a program that supports their
policies to address instances of workplace violence. The
program must include the following:
 Measures for immediate assistance where violence occurs
 Reporting procedures
 Investigative procedures
 Remedies
"Safer for Women, Safer for Everyone"
RISK ASSESSMENT AND REASSESSMENTS
s.32.0.3
Employers SHALL conduct assessments
regarding the risk of violence at work.
Employers SHALL advise the health and
safety/ representative and employees of the
results of these assessments and reassessments
"Safer for Women, Safer for Everyone"
DOMESTIC VIOLENCE
s. 32.0.4
If 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, the
employer shall take every precaution
reasonable in the circumstances for the
protection of the worker.
 S.32.0.5 Sets out employer duties
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"Safer for Women, Safer for Everyone"
Enforcement under OHSA
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The law is enforced through the Ministry of Labour
An order is made by an Inspector instructing the employer to
make any necessary changes to the workplace in light of safety
considerations.
The Inspector is granted broad powers to perform
inspections, including the power to obtain a warrant without
notice to enter the premises, and to order an inspection.
Any person subject to an order from the Inspector may appeal
through the Ontario Labour Relations Board (the Board).
"Safer for Women, Safer for Everyone"
PERSONS WITH A HISTORY OF VIOLENT BEHAVIOUR
s. 32.0.5 (3)
Employers
are now obliged to
provide information to employees
pertaining to the violent histories
of their co-workers where there may
be a risk of violence
"Safer for Women, Safer for Everyone"
Safe Place: s. 43 (5)
Until an investigation is complete, the
employee shall remain in a “safe place” as near
as reasonably possible to his or her work
station.
 Be available to the employer or supervisor for
the purposes of the investigation.
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"Safer for Women, Safer for Everyone"
REFUSAL TO WORK
Where an employee has reason to believe that
there is a potential for violence in the
workplace, he or she may refuse to work.
 Workplace Violence was not included in the
right to refuse work pre-Bill 168
 Violent Behavior or threat of violent behavior
was not considered as “inherent to the
workers work”. (OHSA test)
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"Safer for Women, Safer for Everyone"
OHSA: Treatment of Sexual Harassment
and Workplace Violence pre-Bill 168
 The
Board has generally been concerned
with the issue of duplication, as it feels
that sexual harassment is properly and
more effectively addressed by the Human
Rights Commission and Code.
"Safer for Women, Safer for Everyone"
OHSA: Treatment of Sexual Harassment
and Workplace Violence
 Where
the Board agrees that sexual
harassment could form a successful
complaint under the OHSA it also seems
to set strict limits.
"Safer for Women, Safer for Everyone"
2 Instructive Cases under OHSA
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Lyndhurst Hospital [1996] O.L.R.B. Rep.
May/June 456 (QL)
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Meridian Magnesium Products Limited [1996]
O.L.R.B. Rep. November/December 964
(QL).
"Safer for Women, Safer for Everyone"
Findings
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In both cases, counsel for the employer urged
the Board to refuse jurisdiction over the cases
on the ground that a claim for sexual
harassment was not part of the reach of the
OHSA and because the Human Rights
Code was specifically set out to deal with
matters such as sexual harassment
"Safer for Women, Safer for Everyone"
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In Lyndhurst Hospital counsel for the employer argued that
while sexual harassment was not acceptable in the workplace,
it was not covered under the OHSA and a legislative amendment
would be required to properly include it within the scope of
the law. Counsel argued that the OHSA was intended to
address threats to physical safety and that if the Board
accepted the proposition that sexual harassment was covered
by the OHSA then there would be an obligation placed on
employers to warn employees about the potential hazard
presented by harassers; this suggestion was
characterized by the employer as an absurd result.
"Safer for Women, Safer for Everyone"
Arguments of Counsel
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Counsel for the Employers put forward:
 Open
up a Floodgate of Sexual
Harassment claims
 Severe Duplication Issue
 Sexual Harassment is discrimination
but it is not violence. It is not a safety
issue.
"Safer for Women, Safer for Everyone"
Findings
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Both cases were dismissed:
Duplication
 Sexual Harassment not covered under the OHSA
as it is not a “safety” issue.
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"Safer for Women, Safer for Everyone"
Training Programs: OHSA
Border Steel Ltd. v. Workers of Border Steel Ltd.
 Skyjack Inc. v. Ontario
 Business Case trumps Safety
 Inspector had concerns regarding worker
safety, but was unable to address them with
the tools available
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"Safer for Women, Safer for Everyone"
METRAC Findings
Marginalized
Workers
"Safer for Women, Safer for Everyone"
Key Workplace related issues:
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Workplace harassment/violence is often accepted as
part of the job in some sectors such as health care and
exotic dancing and therefore incidents of violence are
not reported.
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Lack of permanent legal immigration status forces
women to work under precarious conditions and from
reporting incidents of sexual violence and harassment.
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The organization and structure of temporary employment
contribute to women’s inequality and uneven power
relations.
"Safer for Women, Safer for Everyone"
Cont’d ……Barriers to Justice
Disabled women, Foreign, immigrant and refugee women workers more vulnerable due to:
● fear of job loss
● lack of access to information and
● linguistically/culturally accessible resources
Discrimination in the workplace environment clearly increases chances of other forms of
Workplace violence and harassment.
Women workers in precarious work situations often face other forms of discrimination,
including:
● unequal pay,
● health and environmental hazards,
● poor living conditions,
● farm/factory accidents and,
● chemical poisoning.
"Safer for Women, Safer for Everyone"
Potential Responses
Workplace harassment and violence:
1.Keep a journal of what happens and tell your employer/supervisor
2. Make a complaint to the Ontario Human Rights Commission
3. Contact the Ministry of Labor Inspectors
4. File a complaint under the Employment Standards Act
5. Apply for compensation under the Compensation for Victims of Crime Act
6. File a civil suit at a Small Claims Court
"Safer for Women, Safer for Everyone"
Action Plan for dealing with sexual/physical
assault:
1. Go to a safe place
2. Talk to a friend or call a sexual assault/rape crisis
centre
3. Decide whether to report the assault or not
4. If a report is made to police, they will need evidence
"Safer for Women, Safer for Everyone"
Identified responses might not be accessible for the most marginalized women because:
 Human Rights Commission may not review a case if a worker does not have a legal
status in Canada.
Foreign workers who report sexual violence or harassment are at risk of being fired which
could affect their immigration status
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If the police find out a worker does not have legal status, they might still report the worker to
immigration authorities.
Toronto – “Don’t Ask” Policy is not a “Don’t Tell” Policy
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Workers without legal status should consult with a lawyer/legal clinic before:
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filing a civil suit
applying for compensation
"Safer for Women, Safer for Everyone"
If you would like to order METRAC’s
Workplace Justice Series or other METRAC
materials, please contact METRAC
at
Tel: (416) 392-3135
E-mail: [email protected]
For online resources, visit
www.metrac.org www.owjn.org
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