Are You Liable for Workplace Violence? Bill 168 Thinks So (Pt. 1)

Imagine a situation where your co-worker got seriously injured by an outside party ... a subcontractor? an employee's spouse? their friend? your supplier? Many questions might initially pop into your head. How did it happen?  What do I do? And given the new Bill 168 legislation - what does this mean for our liability?  

Bill 168 is an Act passed on June 2010 to amend The Occupational Health and Safety Act of Ontario with respect to violence and harassment in the workplace. It 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". An employer or supervisor is required to take all the necessary steps to limit the chances of workplace violence and harassment from happening!

There haven't been any cases to flow through the courts yet to help us determine the prudent steps to take in this kind of situation.  Anna Aceto-Guerin had the opportunity to attend the Mock Trial at the Partners in Prevention Convention this past month and shares the hypothetical, yet very realistic, case.  The following is a summary of the events for you.

The employer is Billy Bonka Confectioners Inc., a candy company located in Carmel Ontario, who offers a wide variety of sweets and chocolate. David is Billy Bonka's Shipper/Receiver who is responsible for taking care of the delivery of supplies. Billy Bonka orders supplies from Taste-piraton who delivers the liquid sugar Billy Bonka needs to produce their sweets. As Billy Bonka's storage warehouse fills up, the surplus in orders will be delivered to an outside warehouse about 150 feet from the main factory. After a delivery problem with Taste-piration's tanker trucks, they started storing any excessive amount of liquid sugar to Billy Bonka in this storage facility. As a result, David, Shipper/receiver for Billy Bonka had to make frequent trips from the factory to the outside warehouse to receive Taste-piration's deliveries. David maintains contact with Taste-piration's truck driver to schedule the delivery time needed to make the necessary exchanges. The problem starts when the truck driver begins to deviate from their scheduled delivery times. On the day of the incident, after arriving an hour late to their planned delivery time, David complained to the truck driver about his lack of timeliness. As a result, the truck driver grabbed David, threw several blows to his head, and then drove off. David managed to travel back to the factory when his supervisor, Brian Mercer, called 911 for the ambulance and the police.

Let's take a look at those questions. How did it happen? Taken directly from the summary; there was an argument between David and the truck driver which lead to the truck driver's physical altercation. What liability will Billy Bonka have in this scenario?   In the Mock Trial the company was charged with 3 offences including failing to ensure immediate assistance, failing to implement a workplace harassment program, and failing to provide information to a worker; the operations manager was charged with 2. Is there liability on the part of Billy Bonka or their employee?... the truck driver DID deviate from the arranged delivery time, physically grabbed David, and then assaulted him. Many would blame the Taste-piration's truck driver...but now with Bill 168...it's not that easy.

Now, let's reveal some more details about this case.

In the court proceedings, we learn that Taste-piration's Driver had been sending several emails to Billy Bonka's Shipper/receiver that was of a belligerent and derogatory nature.  Also Billy Bonka's Shipper /receiver had mentioned to the Operation manager that he had received emails but the manager did not ask to see them nor did he attempt to deal with them in any way.  Billy Bonka's Operations Manager has been advised by Taste-piration that the truck driver had a prior criminal conviction for assault when he assaulted another employee at the holiday party.  Both parties had been drinking at the time. The Operations Manager, however; did not advise David about these circumstances. Also, the main way of summoning assistance for Billy Bonka employees that need to be in the storage facility was via their cell phones. Just as David lifted himself up after the attack, he grabbed his cell phone to call the factory for help but couldn't receive a signal.

As we mentioned 3 charges were laid to the employer and 2 for the Operations manager. What would you do if you are the human resources manager or the company facing these charges with potential monetary penalties and potential jail time?  What would you do? Stay tuned as we conclude this blog with the verdict and details of the proceedings of the case, but for now, do YOU think this company and their operations manager are liable?

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