While you’re here, you may wish to attend one of our upcoming workshops:
Interviewing and Dealing with Difficult Witnesses
While you’re here, you may wish to attend one of our upcoming workshops:
Who should you believe? This course is for anyone who has investigated allegations but struggled to make a finding. Learn about the science of lie detection, which approaches work and which don’t, and valuable tools to assist you in making decisions. Investigators will leave confident in making difficult credibility decisions. Participants will be provided with comprehensive materials explaining these concepts and tools to better support them in their investigative practice.
Although there are many acceptable ways to resolve workplace conflict, assaulting a co-worker is not one of them. However, the Ontario Workplace Safety and Insurance Appeals Tribunal (the WSIAT, or the Tribunal) was faced with exactly that “conflict resolution strategy” in the recent matter of Decision No. 2140/14.
In that case, the injured worker had been asked by a representative of the employer to move a garbage container to a different location, specifically in order to prevent others from throwing garbage to the ground from the third floor of the building. After doing so, the worker was confronted by the health and safety coordinator, who disagreed with the decision to move the garbage container. In that regard, rather than providing the worker with an opportunity to explain the reasons for his actions, the health and safety coordinator began screaming at the worker, ultimately lost control, and grabbed the worker and threw him to the floor. As the worker hit the floor, he twisted and injured his right knee, which resulted in a five-week absence from work.
The worker applied for health benefits and loss of earnings benefits (LOE) from the Workplace Safety and Insurance Board (the WSIB, or the Board) in respect of his injuries.
Initially, the WSIB allowed the worker’s claim; however, after conducting an investigation, the Board reversed its decision, concluding that “the worker was an active participant in the altercation with the [health and safety coordinator] and thereby removed himself from the course of employment.” After that decision was upheld by the WSIB Appeals Branch, the worker appealed to the Workplace Safety and Insurance Appeals Tribunal, arguing that he was not the aggressor in the incident.
Upon its review of the case, the WSIAT determined that the worker was not the aggressor and, as such, that he had not removed himself from the “course of employment.” Accordingly, the Tribunal ruled that the worker was entitled to LOE benefits and health care benefits in relation to the workplace incident. In reaching its conclusion, the Tribunal referenced the Board’s Operational Policy Manual Document No. 15-03-11, entitled “Fighting, Horseplay and Larking”, which states:
Workers who sustain personal injury as a result of participating in a fight, horseplay or larking at work are generally not entitled to WSIB benefits.
The Workplace Safety and Insurance Act or the Workers’ Compensation Act (the Act) does not provide coverage for workers who are injured while participating in a fight that results solely over a personal matter. However, if the fight results solely over work, the claim may be accepted if the injured worker was not the aggressor and did not provoke the fight, or was an innocent bystander. [emphasis added]
Aggressors and participants in a fight take themselves out of the course of their employment.
Because the Tribunal found that (i) the incident occurred at a work site and in regard to a work activity (in this case, the disposal of garbage on a work site), and (ii) the injured worker was not the aggressor in the fight and did not provoke it, the worker’s benefits were reinstated.
Significantly, in assessing the credibility of the parties in relation to their respective roles in the altercation, the Tribunal also noted that the health and safety officer had a history of physical violence in the workplace, with at least one incident having occurred prior to the incident in question.
Although the Tribunal did not address this point in its decision, it should be noted that – pursuant to the Bill 168 amendments to the Occupational Health and Safety Act (the OHSA) – it is important for employers to consider their employees’ histories of physical violence and the extent to which such information (a) suggests a potential workplace hazard, and (b) ought to be shared with others in the workplace for OHSA compliance and prevention purposes.
Under the OHSA, employers (and supervisors) have duties to take every precaution reasonable in the circumstances for the protection of a worker, which includes, among other things, the requirements to (i) establish a workplace violence policy, (ii) train workers on the workplace violence policy, (iii) reassess risks of workplace violence to ensure that the policy is effective, and (iv) provide information to a worker related to a risk of workplace violence from a person with a history of violent behaviour if the worker can be expected to encounter that person in the course of his or her work and the risk of workplace violence is likely to expose the worker to physical injury.
Employers may face significant fines under the OHSA (i.e. up to $500,000 per count, plus a 25% Victim Surcharge) for failing to take adequate measures to protect the health and safety of workers.
With a view to avoiding such penalties, as well as WSIB claim costs in relation to workplace altercations, employers should consider the following points:
- Ensure that a workplace violence policy and program has been established in the workplace, and that all employees have received training on the contents of that policy and program.
- Review the workplace violence program on a regular basis (and, in particular, after any incident of workplace violence), and revise the program as necessary to reflect additional risks of workplace violence that have become apparent over time.
- Take appropriate disciplinary action if an employee is found to be the “aggressor” or a “participant” in a violent (or potentially violent) event in the workplace. Also, consider whether additional training (i.e. conflict management, etc.) may be appropriate for that individual.
- Consider whether the temperament of the “aggressor” or “participant” is influenced by an underlying disability or other protected ground (and, if so, take steps to determine whether accommodation is necessary, in accordance with the Ontario Human Rights Code).
- If an employee has a history of violent behaviour, provide careful and appropriate notification (i.e. only such notification as is required and permitted by the OHSA) to co-workers (and others) who may encounter the violent individual in the workplace, and establish protocols for de-escalation.
- Subject to any other legal obligations, consider permanently removing employees who present a risk of violence from the workplace as soon as possible.
By taking proactive measures (including those described above) to prevent incidents of workplace violence, employers can improve their due diligence efforts and thereby mitigate against the risks of increased workers’ compensation claims and OHSA penalties.
Ryan D. Campbell
About the Author: Toronto Employment Lawyer Ryan D. Campbell assists both employers and employees in all facets of employment law, workers’ compensation law, and occupational health and safety law. Ryan also has experience assisting Ontario employers in complying with the Accessibility for Ontarians with Disabilities Act, and advising on the use of social media and technology in the workplace.