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April 10, 2014

Employers Should Assess Workplace Violence Plans following North York Office Tragedy

Authors Hendrik Nieuwland and Brandin O'Connor

A tragic incident in a North York office complex this month serves as a stark reminder of the potential consequences of violence in the workplace. Details are still being reported, and an investigation is ongoing, but it is alleged that a 47-year old man attacked his co-workers around 9:30 a.m. in the offices of a human resources technology company, where he had worked. Media suggest that four victims were hospitalized, at least one with critical injuries. Police apprehended the assailant and say that he was in the process of being fired when he attacked his managers with a knife.

To be clear, attacks of this severity are atypical and there is no suggestion that the employer could have done anything to prevent it.

However, of reported incidents of violence in Ontario, a significant proportion occur in the workplace. A 2004 Statistics Canada survey found that 17 per cent of violent incidents occur at the workplace.   The North York attack should give pause to employers to assess their own workplace violence plans.

In Ontario, employers are required to take positive steps to prevent workplace violence. In 2009, the Ontario government amended the province’s Occupational Health and Safety Act (the “OHSA”) to expressly address workplace violence, whether it is perpetrated by employees, management, or members of the public. Moreover, since harassment and bullying often precipitate acts of workplace violence, the OHSA also creates a number of obligations specific to workplace harassment in its own right.

Under the OHSA, employers must conduct an assessment of the risks of workplace violence and report the results to the Occupational Health and Safety Committee, where one exists, and otherwise to workers directly. Employers must then develop and implement a workplace violence program which includes training as well as written policies and procedures posted in the workplace.

A workplace violence program must include measures to: control the risks identified in the assessment; to summon immediate assistance if violence occurs; to allow workers to report incidents or threats; and to investigate such incidents or threats. Further, Ontario is the first Canadian jurisdiction to specifically address domestic violence in the workplace. If an employer is aware or ought to be aware that domestic violence may occur at the workplace, the employer must take every reasonable precaution to protect the worker from such violence. Employers also face the controversial obligation of warning employees of the risk of violence from a person with a history of violent behaviour. This obligation only applies where a worker is expected to encounter this person in the course of his or her work, and the information to be provided is limited to what is necessary to protect the worker.

The obligations placed on employers by the OHSA are largely procedural, and the precise measures to be implemented depend on the workplace in question.

Generally speaking, however, there are a number of specific steps employers should consider. First, employees should be trained to immediately remove themselves from any violent or potentially violent situation, call for help and not intervene. Building security contact information should be clearly posted in workspaces and, if appropriate, a duress button can be installed at keys points, such as reception. An overhead PA system may be used to provide instructions in the case of a serious incident. If a particular person or former employee poses a risk, security or reception may be provided with a photograph for identification purposes. Employers should identify a safe room – such as a conference room or kitchen – with a telephone and a door that may be locked.

In terms of ending the employment relationship, it is generally advisable not to conduct a termination meeting on a Friday or in the last two weeks preceding a holiday period observed by the employee. Employee Assistance Program coverage and on-site outplacement counselling immediately following termination can be effective in mitigating risk of violence. Meetings should be attended by more than one representative of the company and, where possible, security personnel should be nearby or easily summoned.

However, a reasonable balance must be struck. Overzealous security personnel who assault, search, detain or otherwise unnecessarily humiliate an employee may invite significant damages. Similarly, use of surveillance technology and intrusions into employee privacy can also expose employers to liability. 

If an employer is in doubt as to its obligations or requires assistance in meeting them, it should seek professional counsel. The North York attack, though unusual in its severity, highlights the real risks posed by workplace violence.

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