Fourth Session, Thirty-Ninth Legislature

This version is based on the printed bill that was distributed in the Legislature after First Reading.   It is not the official version.   If accuracy is critical, you can obtain a copy of the printed bill from Statutory Publications or view the online bilingual version (PDF).

Bill 219

THE WORKPLACE SAFETY AND HEALTH AMENDMENT ACT (HARASSMENT AND VIOLENCE IN THE WORKPLACE)

(Assented to                                         )

WHEREAS the Government of Manitoba is an employer concerned about the well-being of its employees, and has a duty to prevent all forms of harassment and violence in the workplace;

AND WHEREAS all other employers, in both the public and private sectors, should be under the same duty;

AND WHEREAS a worker subjected to workplace-related harassment or violence should have the right, without fear of threat or retaliation, to disclose such harassment or violence, and to have it investigated and remedied;

AND WHEREAS domestic violence that enters the workplace affects the safety of victims and co-workers and causes lost productivity, increased health care costs, increased absenteeism and increased employee turnover;

THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. W210 amended

1

The Workplace Safety and Health Act is amended by this Act.

2

Section 1 is amended by adding the following definitions:

"domestic violence" means domestic violence within the meaning of subsection 2(1.1) of The Domestic Violence and Stalking Act that is caused by an act or omission of a person described in subsection 2(1) of that Act; (« violence familiale »)

"harassment" means behaviour

(a) of a person, either by repeated conduct, comments, displays, actions or gestures, or by a single serious comment, display, action, gesture or occurrence of conduct, that is

(i) unwelcome, vexatious, hostile, inappropriate or unwanted,

(ii) based on race, creed, religion, skin colour, sexual orientation, marital status, family status, disability, physical size or weight, age, nationality, ancestry or place of origin, or

(iii) an improper use of the power or authority inherent in the person's position, and

(b) that, in respect of a worker,

(i) threatens the health or safety of the worker,

(ii) endangers a worker's job or threatens the economic livelihood of the worker,

(iii) undermines the worker's job performance or negatively interferes with the worker's career in any other way,

(iv) adversely affects the worker's dignity or psychological or physical integrity, or

(v) results in a harmful workplace for the worker; (« harcèlement »)

"workplace-related harassment" means harassment of a worker by his or her employer or supervisor or by another worker, whether or not the harassment occurs at the workplace; (« harcèlement lié au lieu de travail »)

"workplace violence" means

(a) the exercise of physical force by a person against a worker in a workplace that causes or could cause physical injury to the worker, or

(b) an attempt to exercise physical force against a worker in a workplace that could cause physical injury to the worker. (« violence dans le lieu de travail »)

3

The following is added after section 1 before the centred heading that follows it:

Interpretation of "harassment"

1.1

For the purposes of this Act, "harassment" does not include the following:

(a) reasonable action taken in a reasonable manner by an employer or supervisor to

(i) assess, evaluate, transfer, demote, discipline or dismiss a worker, or

(ii) manage and direct the employer's worker or workplace;

(b) a decision by an employer or supervisor, based on reasonable grounds, not to award or provide a promotion, transfer or benefit to a worker;

(c) reasonable action taken in a reasonable manner under an Act or regulation affecting a worker.

4

Subsection 18(1) is amended

(a) in clause (bb), by adding "deal with and" before "prevent"; and

(b) by adding the following after clause (bb):

(bb.1) respecting the form and content of a statement referred to in subsection 42.2(6);

(bb.2) respecting training to prevent workplace-related harassment and workplace violence, or additional training about these issues, for the purposes of section 42.4;

(bb.3) prescribing intervals for providing supervisors with additional training to prevent workplace-related harassment and workplace violence;

5

Subsection 37(1) is amended by striking out "or" at the end of clause (c) and adding the following after clause (c):

(c.1) section 42.7 (workplace-related harassment or workplace violence); or

6

The following is added after section 42.1 before the centred heading that follows it:

HARASSMENT AND VIOLENCE IN THE WORKPLACE

Employer's duties re harassment and workplace violence

42.2(1)

In addition to the duties imposed under section 4, an employer must

(a) ensure, as far as is reasonably practical, that a worker is not exposed to workplace-related harassment or workplace violence;

(b) promote and maintain, as far as is reasonably practical, a working environment that is free of workplace-related harassment and workplace violence;

(c) prepare a written policy respecting workplace-related harassment;

(d) prepare a written policy respecting workplace violence;

(e) review the policies prepared under clauses (c) and (d) at least once per year, or more frequently as the employer considers necessary; and

(f) implement policies for dealing with and preventing incidents of workplace-related harassment and workplace violence, including such policies as may be prescribed.

Posted policies re harassment

42.2(2)

If an employer is required under section 7.4 to establish a written workplace safety and health program,

(a) the policies prepared under clauses (1)(c) and (d) must be posted in a conspicuous place in the workplace;

(b) the program must include measures and procedures for workers to report incidents or threats of workplace-related harassment or workplace violence; and

(c) the program must set out how the employer will investigate and deal with incidents, complaints or threats of workplace-related harassment or workplace violence.

Assessing risk of workplace violence

42.2(3)

An employer must

(a) assess the risk of workplace violence that may arise due to the nature of the workplace, the type of work or the conditions of work;

(b) advise the workers at the workplace of the results of the assessment; and

(c) if the assessment is in writing, provide copies on request or advise the workers how to obtain copies.

Reassessment

42.2(4)

An employer must re-assess the risk of workplace violence as often as is necessary to ensure that

(a) the related policy under clause 42.2(1)(d); and

(b) the program referred to in clauses 42.2(2)(b) and (c), if subsection 42.2(2) applies to the employer;

continue to protect workers from workplace violence.

Duties if harassment or workplace violence occurs

42.2(5)

An employer who knows or ought reasonably to know that workplace-related harassment or workplace violence is occurring must ensure that

(a) the source of the harassment or violence is identified and stopped; and

(b) adequate steps are taken to remedy the effects of the harassment or violence.

Dignity at Work statement to be provided to workers

42.2(6)

On the hiring of a worker, an employer must provide to the worker a copy of a statement that includes the following:

(a) definitions of "harassment", "workplace-related harassment" and "workplace violence" that are substantially the same as their definitions in this Act;

(b) examples of types of behaviour or conduct that may be considered workplace-related harassment or workplace violence;

(c) a statement to the effect that every worker is entitled to employment free of workplace-related harassment and workplace violence;

(d) a statement to the effect that the employer will make every reasonable effort to ensure that no worker is subjected to workplace-related harassment or workplace violence;

(e) a statement setting out the disciplinary action that will be taken against a person who subjects a worker to workplace-related harassment or workplace violence;

(f) a statement explaining how complaints of workplace-related harassment and workplace violence are to be brought to the attention of the employer;

(g) a statement to the effect that the complainant's identity and the circumstances of the complaint will not be disclosed unless the disclosure is necessary for the purpose of investigating the complaint or taking disciplinary action in relation to the complaint;

(h) information on the worker's right to file a complaint under The Human Rights Code.

Domestic violence

42.3

If an employer becomes aware, or ought reasonably to be aware, of domestic violence that would likely expose a worker to physical injury or harassment in the workplace, the employer must take every precaution reasonable in the circumstances for the protection of the worker, which may include

(a) displaying domestic violence prevention posters, brochures, stickers and resource lists in a conspicuous place in the workplace;

(b) distributing a statement that expresses that the employer does not support any acts of violence in the workplace including domestic violence;

(c) inviting community service providers to provide sessions on domestic violence to workers, supervisors and managers;

(d) training workers, supervisors and managers to recognize and respond to signs of domestic violence;

(e) preparing an emergency security plan, including procedures for contacting police when workers observe a person engaging in violent behaviour in the workplace; and

(f) exploring options for voluntary relocation of the victimized worker, and options to prevent the worker from having to deal with harassing electronic communications of any type, including telephone calls, emails, faxes and text messages.

Harassment and workplace violence prevention training to be given to supervisors

42.4(1)

On the hiring of a supervisor, an employer must provide the supervisor with training on how to prevent workplace-related harassment and workplace violence.

Refresher courses

42.4(2)

An employer must, at regular intervals or at intervals as may be prescribed by regulation, provide a supervisor with additional training on how to prevent workplace-related harassment and workplace violence.

Referring a complaint to an officer

42.5(1)

A worker who reasonably believes that he or she has been subjected to workplace-related harassment or workplace violence may file a written complaint with a safety and health officer.

Copy to employer or supervisor

42.5(2)

The worker must promptly give a copy of the complaint referred to in subsection (1) to his or her employer or supervisor.

Before filing complaint, must request that harassment stop

42.5(3)

Before filing a complaint under subsection (1), a worker must ensure that the person responsible for the harassment or workplace violence is requested orally or in writing, by the worker or by another person acting on behalf of the worker, to stop the harassment or workplace violence.

Time limit for filing complaint

42.5(4)

A complaint of workplace-related harassment or workplace violence must be filed within 60 days after the most recent manifestation of such behaviour.

Investigation and report

42.5(5)

On receiving a complaint under subsection (1), a safety and health officer must promptly investigate to determine if workplace-related harassment or workplace violence has occurred and present his or her findings to the worker who filed the complaint and to the employer within 40 days of receiving the complaint.

Extension of time

42.5(6)

If the officer is unable to complete the investigation and presentation within 40 days, the officer must set a date when he or she will present the report and give the complainant and the employer

(a) notice of the date set; and

(b) the reason or reasons for not being able to complete the investigation and presentation within 40 days.

Persons who may accompany safety and health officer

42.5(7)

Any of the following persons who are present at the workplace may accompany the safety and health officer during the investigation:

(a) a committee member who represents workers;

(b) a worker safety and health representative;

(c) a worker who, because of knowledge, experience and training, is selected by a union that represents the worker who filed the complaint or, if there is no union, is selected by the workers to represent them.

Right to refuse work

42.6(1)

If a complaint of workplace-related harassment or workplace violence has been filed, a worker may, after giving notice to his or her employer, refuse to work, if

(a) the harassment or workplace violence substantially interferes with the worker's ability to perform his or her work and the worker reasonably believes the harassment or workplace violence will continue; or

(b) the worker's health or safety is jeopardized by continuing to work.

Notice to safety and health officer

42.6(2)

A worker who refuses to work under subsection (1) must promptly notify a safety and health officer in writing.  The notice must set out the worker's reasons for refusing to work.

Copy to employer or supervisor

42.6(3)

The worker must promptly give a copy of the notice referred to in subsection (2) to his or her employer or supervisor.

Worker to remain off-site

42.6(4)

Pending the investigation and determination of the safety and health officer, an employer shall not require a worker who refuses to work under this section to return to the workplace unless

(a) the employer takes reasonable disciplinary action against, or provides harassment-prevention training to, the person or persons allegedly responsible for the harassment or workplace violence; or

(b) the employer makes reasonable alternative work arrangements for the worker to ensure the worker will have minimal contact with the person or persons allegedly responsible for the harassment or workplace violence.

Worker to be paid

42.6(5)

Until the matter is finally disposed of, a worker who does not return to the workplace under subsection (4) is deemed to be at work during the hours the worker would normally have worked, and the worker's employer must pay the worker for those hours at the regular or premium rate, whichever would otherwise apply.

Safety and health officer's order

42.7(1)

If a safety and health officer determines that workplace-related harassment or workplace violence has occurred, the officer must order the employer to make such arrangements at the workplace as the officer considers necessary to prevent further occurrences.

Order to be in writing and to specify time for compliance

42.7(2)

An order under subsection (1) must be in writing, and must specify whether the employer is to comply immediately or within the time set out in the order.

No hearing required before making order

42.7(3)

A safety and health officer is not required to hold or afford to an employer an opportunity for a hearing before making an order under subsection (1).

Workers' rights

42.8

Despite the provisions of any other Act, nothing in sections 42.2 to 42.7 precludes any rights, protections or remedies that a worker may have under another Act in respect of harassment or workplace violence.

Transitional re statements and training for existing workers and supervisors

7

Within six months after the day this Act comes into force, every employer must

(a) give every worker employed by the employer a copy of the statement referred to in subsection 42.2(6); and

(b) provide training on how to prevent workplace-related harassment and workplace violence to every supervisor employed by the employer.

Coming into force

8

This Act comes into force on January 1, 2011.