A year and a half after Ontario introduced stricter regulations on harassment and violence in the workplace, most employers still don’t know how to put them into practice, experts say.
Since June 2010, when the province amended its Occupational Health and Safety Act, employers have been required to create a written policy on these issues, develop a practical program setting out reporting and investigating procedures and, for the workplace violence program, devise procedures to control risks and summon help when incidents occur. The law also required employers to train workers on company policies and procedures.
While most employers are aware of the legislation’s requirements and of their legal obligations, they have little idea of how to fulfill them, says mediator and trainer Eric S. Trogdon. As a result, they push the training onto lower-level staff.
“The employers themselves seem to be lacking in any training,” he said. “I see employers saying, ‘we need to train our staff’ and having their staff educated. However, they can’t coach their staff if they don’t fully understand.”
Many employers, he added, don’t have the time to go through the training — or at least think they don’t. Instead, they hire contractors to come in and develop their company’s harassment and violence programs and teach the staff about the law.
“Especially with government, they call me in and say they know what needs to be done — but how do they do it? Handling conflicts, disputes and volatile situations, that’s what I teach,” he said. “But I rarely go back and teach the senior staff.
“I guess it’s a money issue: ‘Let’s hit the masses, and let us concentrate on the management.’ If senior management is getting the training, I doubt it.”
Cathy Chandler, an OHS consultant and paralegal at Toronto law firm Gowlings, also believes the law has made employers more aware of their responsibilities. By replacing general provisions requiring employers to prevent harassment and violence with specific, detailed requirements, the new law has increased employers’ knowledge of their legal obligations.
Training for employers is available from many forums, she added, including health and safety associations, the Ontario Labour Ministry web site and laws firms. As well, many recent conferences have discussed workplace harassment and violence.
“[Gowlings] is contacted by all different types of employers, all different sizes of employers,” she said. “They’re looking for interpretation of the legislation, and they’re looking for consulting services to help them comply with the legislation.”
Company training covers topics such as the legal definitions of harassment and violence, creating a policy, developing an incident reporting procedure, setting timelines, (When should an investigation be started? How many days should it take?) disciplinary action and failure to report harassment, Chandler said. They also discuss what to do if the allegations concern a worker’s own supervisor and if a report is deemed malicious.
“And we talk about controversial provisions of the legislation, as well — domestic violence and the provision of personal information. It’s been difficult because, when we started, there was no case law to help us interpret those provisions in the legislation. So we interpreted it as best we could,” she said.
Many companies are not prepared for conflicts, said Trogdon, who has experience as a SWAT team hostage negotiator. They do not practice scenarios, and some have never even discussed their policy. In his employer training, he stresses the importance of scenario practice in helping workers develop techniques they need in real situations, like knowing how to deal with conflict without touching another person and knowing how to protect oneself. He also teaches the need to review, practice and change policies.
“There’s no policy on the books that perfect, and they have to realize that, then go in and teach the staff. And they have to engage with the staff, create scenarios and practice them. I find that very few of these corporations do any kind of scenario practice,” he says.
Since the changes in the law, workers also seem to have become more aware of their legal right to a workplace free of harassment and violence, Chandler said. They understand they don’t have to tolerate harassment and that they can have recourse through a formal process.
A worker recently filed a complaint to the Ontario Labour Relations Board alleging he had been dismissed after he had complained that he had been “abused, harassed and bullied” by his immediate supervisor.
“I think we’re seeing more things like that. The [law] might give workers a better ground to stand on, the fact that they know their employers have to have these harassment policies, that there are legal definitions of harassment and violence now,” she said. “Not that they couldn’t have alleged harassment in the past; they could. But maybe it makes it a bit more specific.”
Still, Trogdon said, many workers are reluctant to speak up for fear of retribution. At the end of one recent training session, he recalled, workers told him they knew harassment was going on around them and they could do nothing about it.
“Some are still afraid to push the issue because of what could be pushed back on them,” he said. “It’s evolving. It’s going to take time for people to realize they do have some power. They do have some responsibility. They have to be able to say they want something stopped, and management has to work on stopping it.”