3 in 10 workers have experienced some form of workplace harassment or violence
What constitutes violence at work? And when can an organization be held legally accountable? The European Union Agency for Fundamental Rights (FRA) reports that three out of 10 workers have experienced some form of workplace harassment or violence, with women and those with disabilities being more at risk.
What’s more, the Bureau of Labor Statistics reports that there were 20,790 cases of serious workplace violence (resulting in days away from work), with healthcare and social assistance workers being at the highest risk.
It falls on employers to provide a safe space for both employees and customers – ensuring that occupational health and safety is maintained at all times. So, if an employee engages in violence at work how should HR react?
“Complaints of workplace violence should be investigated – quickly but carefully,” Mike MacLellan, partner at CCPartners LLP, tells HRD.
“Information should be gathered from the alleged victim, the alleged aggressor, and any witnesses,” says MacLellan. “In the event that statements are not in agreement, a decision will have to be made as to whose version of events seem most reliable. If there is video footage of the incident, either from cameras in the workplace or videos taken by witnesses, the videos should be reviewed to determine what happened.
“The alleged aggressor needs to have an opportunity to give their side of the story, and any explanation for their misconduct. An employer should not make rash decisions on terminating employees, even in cases of alleged workplace violence.”
Terminating employees shouldn’t be a trigger-happy process. It’s incumbent on HR practitioners to hear both sides of the story before making any hasty decisions. After all, unfair dismissal claims are all too common a threat for Canadian organizations.
“The test for a just cause termination of employment is that there has been an irreparable breakdown in the employment relationship,” says MacLellan. “Termination is appropriate where no response short of termination will suffice. In many cases, workplace violence will justify a just cause termination.”
However, factors to consider will include; the severity of the incident, the disciplinary record of the employee, mitigating factors, and likelihood of repeated violence.
“If a violent incident was particularly mild, perpetrated by a long-tenured employee with clean disciplinary history, and there is some mitigating factor like a brief medical episode that has been properly treated, termination is likely not appropriate,” adds MacLellan.
Legal issues don’t end for the employer when the worker is fired – in fact, if another employee or individual is hurt in an altercation the organization could be liable.
In 2016, an Ontario organization was fined $125,000 after one of its employees was physically assaulted in the workplace. The incident involved a recruit working in a detention centre who was assaulted by one of the boys staying there. The agency ultimately plead guilty for failing to provide information, instruction and supervision to protect a worker from workplace violence or the risk of violence from a resident.
But when can an employer be held legally accountable for the actions of an employee?
“That would depend on the circumstances,” says MacLellan. “The employer could be exposed to civil liability if they were reckless or negligent in supervising the workplace, and their inaction led to the violence. For example, if an employer ignored warnings from employee A that they intend to attack employee B, then certainly the employer could be legally responsible for a subsequent act of violence.”
However, if the violence occurred notwithstanding that the employer took diligent steps in managing and supervising the workplace, or a violent incident occurred and the employer could not have known about it, the employer will not be liable.
