SECOND CLASS WOMEN-SEX ASSAULTS AND WORKPLACE VIOLENCE
Employers across Ontario are watching with baited breath to see what happens to the charges that the Ministry of Labour recently laid against the Centre for Addiction and Mental Health (CAMH). It is alleging that CAMH failed to take steps to prevent workplace violence against a staff in contravention of provisions of the Occupation Health and Safety Act.
Workplace violence is a serious matter. Workers of every variety frequently become the object of violence in the workplace. Some say that workplace violence has reached epidemic proportions. The Occupation Health and Safety Act imposes a duty on employers to take active steps to create and maintain violence-free workplaces..
With respect to the an employer’s legislative duty to prevent violence in the workplace, the Ministry of Labour’s website make it plain that “employers must prepare a policy with respect to workplace violence, and develop and maintain a program to implement the policy. Employers must provide information and instruction to workers on the contents of these policies and programs.”
The statute provides the framework for holding employers accountable, subject to statutory and common law defences. That the Occupation Health and Safety Act is quasi-penal is without question. That the Act imposes the potential for stiff fines is also a matter that cannot be seriously disputed. Unlike the Ontario Human Rights Code then, the Occupation Health and Safety Act with its provisions for directors’ liability is a piece of legislation with teeth.
CAMH’s brush with the law arose when one of its patients brutally assaulted a female staff leaving the staff with serious bodily injuries. A recent Toronto Star article on the subject noted that CAMH fines, if found guilty could be up to $2, 000, 000.
While employers are likely to take the provisions of the Occupation Health and Safety Act that impose a duty to ensure a violence-free workplace the jury is still out on whether the relevant provisions of the Occupation Health and Safety Act has the potential to create an inferior class of women in workplaces. Specifically, does the Act set up a situation in which some sexual assault victims may receive no benefits from its provisions even when clearly being the subject of violence in a premises that would otherwise be a workplace?
Let’s take the issue of sexual assault. Sexual assault is a serious criminal offence. Plenty of women have experienced sexual violence. Some occur at the hands of a co-worker. Thousands of women suffer silently ion the workplace from the emotional impact of sexual assault.
A woman raped outside the confines of the workplace is arguably not the subject of the Occupation Health and Safety Act reach, even if the employer’s conduct is so egregious as to exacerbate the psycho-social impact of that rape within the workplace. This appears true even if the sexual assault is committed by an existing or former co-worker so long as the violence occurred outside of the workplace. To the extent that this distinction is true, the provisions of the Occupation Health and Safety Act sets up a scenario in which two rape victims employed by the same organization are treated very differently. It is true that no employer can be expected to police events that occur outside the workplace, even as employers now have an obligation to prevent the occurrence of domestic violence in the workplace. Could it be that the Occupational Health and Safety Act has inadvertently creates second class women in the scope of its application?
Undoubtedly sexual assaults and sexual violence against female staff occur in workplaces all across this country, Ontario included. When a sexual assault occurs against a staff in the workplace, the provisions of the Occupation Health and Safety Act are triggered so as to engage a review to determine the employer’s culpability. It is perhaps because legislators and policy makers understand the issue of violence, including sexual violence against women and the potential for that violence to play itself in a workplace that the Prevention of Violence in the Workplace mandate extends to domestic violence in the workplace. The Ministry’s website contains the following passage
Employers who are aware, or ought reasonably to be aware, that domestic violence may occur in the workplace must take every precaution reasonable in the circumstances to protect a worker at risk of physical injury.”
This is not a case in which the statute fails to define a workplace. The statutory definition of workplace is:
“workplace” means any land, premises, location or thing at, upon, in or near which a worker works.”
For the purposes of the Act and the contents of this article here are a few relevant definitions:
“homework” means the doing of any work in the manufacture, preparation, improvement, repair, alteration, assembly or completion of any article or thing or any part thereof by a person for wages in premises occupied primarily as living accommodation; (“travail à domicile”)
“owner” includes a trustee, receiver, mortgagee in possession, tenant, lessee, or occupier of any lands or premises used or to be used as a workplace, and a person who acts for or on behalf of an owner as an agent or delegate; (“propriétaire”)
Portions of section 2 of the Occupation Health and Safety Act read as follows:
(2)Despite anything in any general or special Act, the provisions of this Act and the regulations prevail. R.S.O. 1990, c. O.1, s. 2.
3. (1)This Act does not apply to work performed by the owner or occupant or a servant of the owner or occupant to, in or about a private residence or the lands and appurtenances used in connection therewith.
(2)Except as is prescribed and subject to the conditions and limitations prescribed, this Act or a Part thereof does not apply to farming operations.
(3)Except as is prescribed and subject to the conditions and limitations prescribed, this Act or a Part thereof does not apply to,
(a) a person who is employed as a teacher as defined in the Education Act; or
(b) a person who is employed as a member or teaching assistant of the academic staff of a university or a related institution. R.S.O. 1990, c. O.1, s. 3.
The statutory scheme does not apply to the owner, as defined above and it defines neither the term “occupant”, nor “servant of the owner”. What is for sure is that there is plenty of paid work that is performed in a private residence. It seems that even though a workplace is any place at which a worker performs work, the owner or occupier of a private residence is not caught by the provisions of the Act, even if work is performed for the employer at that private residence.
Men and women work from home all the time. Many of those people won their home, or are tenants. It is also true that employers are constantly looking for ways to avoid paying taxes, or at least minimize their tax bite. When setting up their business affairs, many employers demand that a prospective employee sets up a corporation to which payment of wages is made. In the world of employment law, this arrangement is often referred to as a dependent contractor. If the words of the legislation are taken at face value, violence in a dependent contractor’s residence while the dependent contractor is performing work is not caught by the Act. So, though the act seeks to offer protections to workers against foreseeable domestic violence in some workplaces, it arguably excludes domestic violence that occur in a class of workplaces owned by the worker. In this sense, the Occupation Health and Safety Act sets up a situation in which a female dependent contract who owns her own home who is raped or assaulted while performing work for her “employer” could not benefit from the statutory scheme simply because the sexual assault incident occurred in her own home, despite the definition of a workplace and presumably even in the face of the definition of ‘homework”. It is in this sense that WINN asserts that the provisions of the Act are woefully inadequate in addressing the social context within which violence against women occurs as well as the current arrangements under which work is performed for an employer.
Though the policy of to prevent the occurrence of domestic and sexual violence in the workplace seems to place a positive duty on employers to maintain procedures and policies to prevent its expression in the workplace, it appears that there is a gap in the legislative scheme occasioned by its stated non-application to an “owner’s” private residence. It would seem reasonable that a sexual assault that occurs at a owner’s residence should enjoy no different a legislative status than when it occurs in a conventional workplace, provided that the owner’s private residence is a “workplace” within the meaning of the Act. Radical as this may sound, the prevention of domestic violence provisions of the Prevention of Violence in the Workplace apparatus already delves into the private life of employees. A second class woman should not be created simply because she “occupies” the owner’s residence. So, the lover of a owner who performs work at home may be excluded from the reach of the Act for no justifiable reason..