HR Insights 2023 | Issue 2

HR INSIGHTS

2023 Issue #2

SARC’s Human Resources and Labour Relations Newsletter

#20 VIOLENCE IN THE WORKPLACE

In this issue, consultants from SARC and MLT Aikins discuss topics of psychological health and safety as well as harassment and violence in the workplace.

Contents Recent Legislative Changes Impact How Employers Are Required to Address Violence and Harassment in the Workplace

Amy Gibson

The Landscape Is Changing but the Foundations Remain the Same: Violence in the Unionized Workplace

Scott Mostoway

Psychological Health and Safety: Why it Matters and What You Can Do

Scott Mostoway

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Recent Legislative Changes Impact How Employers Are Required to Address Violence and Harassment in the Workplace

by Amy Gibson An Act to Amend The Saskatchewan Employment Act (the “Amendment Act 2022”) came into force on May 17, 2023. In this article, Amy Gibson, Lawyer MLT Aikins, explains the new requirements to address before May 17, 2024.

The Landscape Is Changing but the Foundations Remain the Same: Violence in the Unionized Workplace

by Scott Mostoway

With legislation changing, there are some considerations to keep in mind when dealing with situations of violence while operating in a unionized environment. Scott Mostoway talks about the collective agreement language, and what considerations arbitrators make when deciding an appropriate disciplinary penalty.

Psychological Health and Safety: Why it Matters and What You Can Do

by Scott Mostoway

A psychologically safe workplace is one where everyone works to create a respectful and engaging learning environment. SARC Senior Labour Relations Consultant, Scott Mostoway, explores ways to ensure a more psychologically safe workplace and the benefits of doing so.

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Introducing SARC’s Workforce Development Coordinator Meet Bobbi Janzen, SARC’s new Workforce Development Coordinator! In this role, Bobbi will be identifying and fostering strategic partnerships with education, labour, other workforce organizations, and community partners to address Disability Service sector workforce needs and assist with talent supply and demand. She will also lead workforce promotion strategies to connect job seekers to the Disability Service sector. Bobbi is looking forward to applying her background in talent acquisition, recruiting, and disability sector advocacy to this role and connecting with our Members to learn more about the sector’s workforce needs.

Bobbi Janzen SARC Workforce Development Coordinator

Bobbi is also available to consult with SARC’s Regular and Associate Members on their workforce development inquiries, including recruitment and retention strategies, job descriptions, HR policies and procedures, compensation/total rewards, and succession planning. She can be reached at bjanzen@ sarcan.sk.ca or (306) 933-0616, ext. 221. You can look forward to having Bobbi as an article contributor in future issues of HR Insights.

Article Contributors About Scott Scott can assist SARC’s Regular and Associate Members with a variety of LR/HR issues, including progressive discipline, performance management, and duty to accommodate for unionized and non-unionized organizations. He can also provide specific support in collective bargaining for unionized organizations. Accessing this service is free of charge and can minimize organizational risk. Having a quick check-in or a review done before decisions are made can save you time and money in the end.

Scott Mostoway SARC Senior Labour Relations Consultant

About Amy Amy Gibson carries on a general labour and employment law practice. She advises employers on a variety of labour issues, including union certification drives, collective agreement interpretation, labour disputes, workplace policies, discipline and discharge, employment contracts, OH&S, workers’ compensation, labour standards and human rights. She has experience with a variety of court and administrative proceedings as well as representing clients before the Saskatchewan Labour Relations Board and in Canada Labour Code unjust dismissal adjudications.

Amy Gibson Lawyer, MLT Aikins

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RECENT LEGISLATIVE CHANGES IMPACT HOW EMPLOYERS ARE REQUIRED TO ADDRESS VIOLENCE AND HARASSMENT IN THE WORKPLACE Amy Gibson

Partner, MLT Aikins LLP

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n Act to Amend The Saskatchewan Employment Act (the “Amendment Act 2022”) came into force on May 17, 2023, amending important employer duties regarding occupational health and safety as set out in The Saskatchewan Employment Act. New requirements to address workplace violence, harassment, and workplace investigations are now in force. As of May 17, 2024, all employers in Saskatchewan will be required to have a violence policy and prevention plan in place. Prior to the amendment, only high risk sector workplaces were required to have a violence policy and prevention plan.

reasonably be expected to occur, identity staff positions that have been or may reasonably be expected to be exposed to violent situations, and include the procedure to follow when reporting a violent incident. They are to include actions the employer will take to minimize or eliminate the risk of violence, the procedure for documenting and investigating instances of violence, and a commitment to training. The policy and plan will also need to include a recommendation that employees receive post-incident counselling or consult a physician following an instance of violence.

While many organizations will already have a violence policy and prevention plan applicable to their group home and day program operations, it is best practice to review the policy and plan to ensure it is in compliance with the recent amendments and reflects the risks of violence within your organization. Organizations that do not have a violence policy statement and prevention plan in place, or do not have one that encompasses all areas of their operations, must ensure one is implemented by May 17, 2024.

The Amendment Act 2022 expanded the definition of worker, meaning the violence policy and plan now also applies to students, volunteers, and contract workers.

Workplace Violence Policy

Workplace Violence Training

A violence policy statement and prevention plan is developed in consultation with the organization’s occupational health committee, the occupational health and safety representative, or the workers if there is no committee or representative. The policy and plan must include a commitment to minimize or eliminate risk, identify worksites where violent situations have occurred or may

Employers will need to ensure that all workers receive training on workplace violence. This training must include the means to recognize potentially violent situations, as well as the procedures, work practices, administrative arrangements and controls that have been developed to minimize risk of violence. Workers must also receive training on the appropriate

Copies of the policy statement and prevention plan must be readily available to employees.

They are to be reviewed and revised if necessary every three years or whenever there is a change in circumstances that may affect the health and safety of workers.

response to incidents of violence and reporting procedures.

General Duties of Employers, Supervisors, and Employees As a result of the amendments, employers and supervisors are required to “ensure, insofar as reasonably practicable” that workers are not exposed to violence in the workplace. This means that employers and supervisors must be aware of the risks of violence within their workplace and ensure steps are taken to reduce the risk of violence. Training should be provided to supervisors to ensure that they can fulfill this duty.

Further, pursuant to section 3-10 of The Saskatchewan Employment Act, there is now an express duty on employees to refrain from causing or participating in violence towards others in the workplace.

Workplace Investigations The obligation on employers to investigate incidents of harassment and violence have been expanded. As a result of the recent amendments, an employer must conduct an investigation into any incident of violence or harassment in the workplace. Incidents of harassment include both formal complaints as well as suspected harassment. While this requirement is likely to expand the number of investigations in the workplace, not all workplace investigations will require a rigorous and lengthy review.

Employers should always ensure that the basics of an investigation are completed and followed.

Once it is determined that an investigation is required, the employer must decide who is the appropriate person to conduct the investigation. An investigator should be trained and experienced, be unrelated to the complainant to avoid bias or perception of bias, and have the

authority and credibility to make findings in the investigation. Depending on the circumstances, an external investigator may be most appropriate.

An investigation should include interviews of the complainant, respondent, and other relevant witnesses. This may involve interviewing parties more than once. The investigator should ensure all steps taken during an investigation are documented and that information gathered remains confidential. Participants in the investigation process should be advised and reminded that what is discussed in the investigation is to remain confidential.

Good notes are critical in the investigation process. These notes, along with a review of the workplace policies and relevant laws, should be relied upon to draft a final report. The final report will include all the information received during the investigation, the conclusions reached, and any corrective action that is required. The final report is primarily an internal document. Subject to any policies or collective bargaining agreements that state otherwise, generally the complainant and respondent to a complaint are not entitled to receive a copy of the final report. They are entitled to be informed about the outcome of the investigation.

An investigation into harassment or violence can provide the basis for disciplinary action and addressing occupational health and safety concerns within the workplace. It is recommended that an organization consult their legal counsel if they are unsure of how a matter should be addressed in the investigation process. In the event that an employee decides to pursue an occupational health and safety complaint or challenge disciplinary action arising from an incident in the workplace, having a welldocumented investigation report can help provide a defence against any actions or proceedings that may arise.

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THE LANDSCAPE IS CHANGING BUT THE FOUNDATIONS REMAIN THE SAME: VIOLENCE IN THE UNIONIZED WORKPLACE Scott Mostoway SARC Senior Labour Relations Consultant

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mid legislative changes that will soon be having an impact on Saskatchewan employers, the landscape of violence in the workplace will be shifting to take a more proactive approach via legislation. Along with mandatory policies on violence in the workplace, employers will now be tasked with also having a prevention plan starting in May 2024. Will all these changes ultimately reduce the number of incidents related to violence and harassment in the workplace?

Short answer, we hope so. Situations involving violence and harassment in the workplace not only impact the individuals involved, but also the greater workforce and their well-being. We as employers already have the obligation to provide a safe and healthy workplace, and the failure to do so can lead to negative impacts related to risk and liability through the legislation but also in morale, productivity, and engagement.

Although the legislation is changing to include a proactive approach, the same foundational principles remain when dealing with violence in the workplace. What are some considerations we have to keep in mind when dealing with situations of violence while operating in a unionized environment?

agree to introduce language into their collective agreements, that they do so in a way that protects their ability to deal with situations of alleged violence. This would include avoiding language that may be: •

Onerous, which could hinder your ability to investigate in a timely manner; or

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Inconsistent with employer policies and legislation.

Common, and preferred, language in collective agreements includes a willingness of both the employer and the union in their commitment to eliminating violence in the workplace by fully complying with relevant legislation.

Collective Agreement Language Relevant to Dealing with Violence in the Workplace

Collective Agreement Language Specific to Violence in the Workplace

Some collective agreements specifically spell out and contemplate violence in the workplace. In some cases, collective agreements are silent on specifics of violence but have several provisions that have to be taken into account when an employer is faced with an incident that involves allegations of violence. Some common relevant provisions to follow, in order to deal with these types of situations effectively, are:

In what seems to becoming a more common trend in the Labour Relations context is the introduction of language into collective agreements that speak specifically to violence in the workplace.

Although generally uncontroversial, it is important for employers to ensure that if they are going to

1. Representation - Not unlike any other investigation process that we as employers undertake, many of our collective agreements include language that affords employees the ability to have union representation in all investigatory and disciplinary meetings. It is

critical that if your collective agreement gives 1. Who was attacked? (Supervisor, fellow employees the right to union representation employee, or someone who the employee will during these types of meetings that you ensure have to work with in the future) the union is present, as the failure to do so may 2. Was the situation a momentary lapse in result in any disciplinary action or evidence judgment or a premeditated attack? being void.

2. Timelines - Some collective agreements have stringent timelines attached to employers in which they must investigate and discipline an employee after knowing of such events.

It’s once again imperative that you as an employer adhere to the timelines in the collective agreement. Avoiding a procedural breach could prevent or put your investigation results in jeopardy of being challenged and an appropriate disciplinary response being overturned.

What Considerations do Arbitrators Make when Deciding what Disciplinary Penalty is Appropriate?

Labour arbitrators have long reaffirmed that violent behaviour by employees in the workplace is serious misconduct and in general warrants severe discipline, if not termination. Not only do arbitrators have to consider an employer's right to an effective functioning workplace, but they also must take into account the legislative framework in which we as employers are required to provide a workplace free from violence. Below are some of the top considerations that arbitrators consider when deciding upon a case involving violence and what constitutes the appropriate disciplinary response:

3. How serious was the attack?

4. Was there any provocation?

5. What is the employee’s previous discipline record?

6. What is the employee's length of service?

7. Does the employee have any other economic prospects?

8. Has the employee apologized or expressed any willingness to do so?

9. Has the employee been forthcoming and honest throughout the process?

Employers must determine each situation on a case-by-case basis. Each allegation of a violent incident should be investigated appropriately with strong emphasis on ensuring we are following any relevant provisions in the collective agreement to put ourselves in the best position to deal with employees that engage in violence. A safe workplace is a healthy workplace, and a healthy workplace is a productive workplace.

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PSYCHOLOGICAL HEALTH AND SAFETY: WHY IT MATTERS AND WHAT YOU CAN DO Scott Mostoway SARC Senior Labour Relations Consultant

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t seems, almost by habit, that when we think of health and safety in the workplace it is almost exclusively limited to physical harm or injury. Our mind might think of slips, trips, and falls or back injuries related to lifting or perhaps incidents of violence as we’ve discussed through the other two articles in this issue. Like any responsible employer, we try our best to limit these situations as we do not want to see any of our employees getting injured at work. What doesn’t always come to mind is the health and safety of our employees’ mental well-being, but just as we’ve talked about the importance of keeping our employees physically safe, it is equally as important to consider our employees’ psychological safety.

macro level:

A psychologically safe workplace is one which fosters an environment that focuses on supporting individuals as well as the different departments and classifications in which they work to create a respectful and engaging learning environment. It is the state of mind within employees in which they feel supported to be themselves and express their viewpoints.

I know what you may be thinking – the list of benefits of the above sounds great, but how can we as an organization attempt to foster this kind of environment? First, we must understand the factors that contribute to a psychologically healthy workplace that we as leaders can take the helm on achieving. Some of these factors include, but are not limited to:

We as employers and leaders of our organizations play a critical role in creating a psychologically safe workplace. A workplace that is psychologically healthy is one in which well-being exists, where our employees can exercise their abilities, can deal with and manage stress, and can work productively to achieve the goals and objectives of our workplaces. This all sounds great, but what does it mean? What are some potential benefits for us as employers in relation to our workforce?

According to the University of Alberta Department of Human Resources and Health and Safety, benefits can be identified and range from a micro to a

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Organizational Culture – Culture built on trust, honesty, fairness, respect, and diversity.

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Clear Leadership and Expectations - Simply put, employees know what it means to succeed.

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Recognition and Reward – Rewarding and reinforcing positive behaviours.

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Workload Management – Challenging yet realistic job standards.

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Balance – Recognizing work-life balance and flexible arrangements where possible.

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Improved employee engagement

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Increased sustainability

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Improved recruitment and retention

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Increased health and safety

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Reduced absenteeism

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Reduced presenteeism (people being at work but not being productive, for a variety of reasons)

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Reduced benefits costs

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Reduced workers compensation board (WCB) claims and disability rates

9 We as employers are already busy, and adding more elements to our management and leadership teams seems like a daunting task. We of course want to build teams that are productive and respectful to each other while not only promoting their physical health and safety but also their psychological health and safety. As employers and management teams, we cast a shadow everywhere we go when dealing with our staff. They pick up on our cues, how we act and interact with others. Luckily, the practical tips that have been documented to show success in promoting a psychologically healthy and safe workplace are more simplistic than we may think.

Keep some of these practical tips in mind when casting your shadow within your workplace: •

Be Fair

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Be Flexible

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Empower and Challenge

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Promote Respect

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Set Teams up for Success

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Be Supportive

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Encourage and Foster Open and Honest Dialogue

You may also want to consider whether your organizational policies, resources, and training programs support psychological health and safety.

When was the last time you reviewed your Health

and Safety, Anti-Harassment, and Violence in the Workplace policies? Does your organization have a Diversity, Equity, and Inclusion policy? Do your employees have access to resources and training related to respectful workplaces and how they can contribute to psychologically healthy and safe work environments?

For more ideas, you may want to check out: •

National Standard for Psychological Health and Safety in the Workplace

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Psychological Health and Safety at Work Service HospitalityService Hospitality

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Safety Management System (SMS) - SASWH

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SARC’s Manager Resource Area for: -

Developing a Safety Management System – A Toolkit for Nonprofits

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Sample Diversity, Equity, and Inclusion Policy

When employees don’t feel safe in their workplace, it stands to reason that they will not be in a position to do their jobs to the best of their ability. When those jobs involve supporting others, the consequences can be far-reaching. Employers owe it to both their employees and those relying on their organization’s services to ensure a healthy and safe workplace, and that extends to psychological health and safety.

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Use the promo code SARC50 for an additional 50% off Is your organization prepared to address violence and harassment in the workplace?

Recent amendments to The Saskatchewan Employment Act require all provincially regulated employers to have a violence policy statement and prevention plan in place by May 17, 2024. All incidents of harassment and violence in the workplace must now be investigated.

In this webinar we will cover key topics you need to know, plus practical tips and tricks for addressing these issues including: • Best practices for investigating and responding to incidents of violence and harassment in the workplace • Tips for drafting and implementing a violence prevention policy and plan • Managing and responding to employee leaves of absence following an incident of harassment or violence, including interpersonal violence leave and Saskatchewan Workers’ Compensation Board considerations • Training obligations for employers Speakers • John Agioritis • Amy Gibson • Moderated by Meghan Johnson Event Details: • Price: $75.00 + applicable taxes • Webinar: 10 - 11:30 a.m. CST • As a member of SARC, you can use the promo code SARC50 to get 50% off your registration fee.

• Space is limited. Only employers or their representatives are eligible to attend. We reserve the right to decline registrants.