Tuesday, October 18, 2011

Is Your Workplace in Compliance with Bill 168?

In June 2010, amendments to Ontario's Occupational Health and Safety Act became effective, requiring most employers to implement policies and programs dealing with harassment in the workplace and violence in the workplace.  It was big news in the HR field and employment law field at the time, and most large employers amended their policy manual to bring themselves into compliance.  Yet many workplaces did not.

Many employers don't make much use of policies.  I strongly recommend the implementation of a good policy manual for just about any workplace - and I can assist in the development of such - but one of the striking aspects of Bill 168 is that it made certain policies legally mandatory.  Not just a good idea.

Especially in light of the mandatory requirement, there are a lot of risks associated with not having them.  First, it's a quasi-criminal offence:  An employer can be charged for breaching the Occupational Health and Safety Act.  When injuries occur due to such breaches, fines typically run upwards of five digits, and it isn't at all uncommon to see fines in excess of $100,000.  Earlier this year, Metro Ontario was fined $350,000 (plus, as always, a 25% victims surcharge) after a young worker was killed at a Mississauga store.

Even beyond those liabilities, however, there's the additional risk that liability could be incurred in respect of employees.  If an employee is the victim of harassment or violence in the workplace, it will be much easier for an employee to make out a case for constructive dismissal, possibly seeking aggravated damages in addition to all else, if the employer has neglected its statutory obligation to provide a recourse mechanism.

On the flip side, while this hasn't worked its way through into the jurisprudence yet, I expect that it will be much harder than before for an employee to make out a constructive dismissal case on the basis of harassment where they haven't taken advantage of recourse made available to them in a properly-implemented policy.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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