Canadian HR Reporter

CANADIAN HR REPORTER October 5, 2015 16 NEWS Are you looking to reach occupational health and safety professionals across the country? Get your listing in the Health and Safety section of HR Vendors Guide online and in print. Visit www.hrreporter.com/hr-vendors-guide to enter your firm's information. Visit www.hrreporter.com/hr-vendors-guide HR VENDORS GUIDE HR VENDORS GUIDE Attention OHS vendors and suppliers Employee Recognition That Works! Request a Demo www.terryberry.com/demo 800.253.0882 Get a FREE Demo violent, disrespectful and threat- ening gestures." e claim went on to say Star- bucks failed to follow its internal policies or act on an incident re- port filed by Mishimagi either "in any matter" or with steps that "were insufficient in so far as pro- tecting Mishimagi from Jolly." "e plaintiff 's position is that it was a shoddy job, so not really in- vestigating, not doing some of the basic things that perhaps should be done like sending a copy of the report or reporting back to the em- ployee and saying… 'is is what's happening,'" said Saron Gebresel- lassi, Toronto-based litigation law- yer representing Mishimagi. In response, Starbucks said it is committed to providing a safe, supportive work environment. "We take these claims very se- riously as they are not consistent with our values and who we are as a company. Starbucks has ro- bust policies and procedures for investigating partner complaints, which we have employed in this matter. While personal matters are confidential, we are prepared to vigorously defend the reputa- tion of our partners and our com- pany in this case." e end of the claim cites On- tario's Employment Standards Act, the Ontario Human Rights code, Occupational Health and Safety Act and Negligence Act. "ere were breaches of mul- tiple pieces of legislation in the province," said Gebresellassi. But it's not clear exactly what it is they are claiming, said Carissa Tanzola, a lawyer at Sherrard Kuzz in Toronto. "What kind of harassment are we talking about — is this ha- rassment based on prohibited grounds in the human rights code or is this the bullying harassment that we see outlined in the Occu- pational Health and Safety Act?" Often, everything that can be claimed is claimed, especially when you're dealing with a dam- age claim for this amount, she said. "Your damages come from a violation of the human rights code moreso than an Occupational Health and Safety Act violation, as we see the case law develop. ere can be punitive damages… but that's a little bit different when (we) see demands come in. e ones we worry about are the ones that have allegations linked to the human rights code." Workers' compensation e claim is not really relying on the workers' compensation stat- ute, as that's more for workers physically injured on the job, said Gebresellassi. "is is more dealing with is- sues of verbal violence, emotional violence… what we're looking at is anti-harassment, discrimina- tion, creating a healthy and safe work environment," she said. "e employer may attempt to have this thrown out of court and say work- ers' comp will cover it… But there's definitely breaches of the human rights legislation as well, and we're prepared to bring that forth to the Human Rights Tribunal to ensure that she actually does have a fo- rum because the WSIB (Ontario's Workplace Safety and Insurance Board)… that's about getting ben- efits when you're injured, that's not about holding the employer liable for negligence or for verbal assault or physical assault." It's an interesting area of the law that hasn't been completely sorted out yet, according to Bokenfohr. And one of the defences in claims relating to workplace harassment may be this is ultimately a type of injury that was suffered at work and should be subject to coverage. "The eligibility under work- ers' compensation varies from province to province," he said. "It gets to be a tricky area of the law, though, because the… statutory bar against claims often doesn't relate to intentional conduct. So when you get into these cases where someone says, 'I was as- saulted at work, I was intentionally harassed at work,' I think there's a good case to be made that workers' compensation should not bar that type of claim because it's not an ac- cident and workers' compensation was never designed to immunize workers or employers against in- tentional conduct like that. "It's a dangerous proposition or a false comfort that employers would take if they think they can just rely on workers' compensa- tion legislation to immunize them from those sort of claims." is is an emerging area in the Workplace Safety and Insurance Appeals Tribunal, said Tanzola. "The act basically says that mental stress is not something that a person's entitled to get com- pensation for through the work- place insurance system." However, there is a provision that talks about a person being en- titled to benefits for mental stress if that is a reaction to something traumatic that's happened unex- pectedly at work, she said. And a recent decision by the tribunal talked about how that section of the act is unconstitutional. "ey've opened it up to say, 'It doesn't have to be sudden or traumatic or acute, it could be something that can happen over a long period of time.' at decision is still being worked out through the case laws but what that means is there is a larger opportunity, if I can put it that way, for these types of claims to be covered under the WSIB or the workplace safety and insurance system. And if it is go- ing to be covered, then what Star- bucks would do is say, 'Well, look, any of these damages then have to go through the WSIB; we pay into the WSIB system, like a no-fault insurance plan, and now you can't sue me.'" Negligence Mishimagi also claimed the com- pany was negligent in failing to properly investigate Jolly's back- ground, character and psycho- logical state prior to his hiring. "Part of the allegation is that there was a history of that kind of behaviour and... there are wit- nesses that are prepared to cor- roborate the plaintiff 's version of events as well," said Gebresellassi. When it comes to issues of neg- ligence, it's not uncommon to see such allegations in these cases, said Bokenfohr. "Anytime there are red flags that were not investigated or were missed, that's going to form part of the negligence allegations and anytime there's a failure by an em- ployer to adhere to its own poli- cies — whether that's relating to background checks or interview processes or... following its harass- ment policies and so forth — that's going to be something that's going to form part of the claim as well, and it's very difficult for any em- ployer to answer." From an employer perspective, it's difficult to know sometimes who you're getting, said Tanzola, even after all the safeguards such as resumé and reference checks and interviews. On the other hand, there can be pushback if someone feels an employer is do- ing too much checking, she said. "I'm always inclined to remind employers that sometimes when something happens or is alleged to have happened, there's nothing you can do (to prevent) that. We think we're hiring good people, we provide training to these people but sometimes things still happen and our obligation as employers isn't (necessarily) to prevent all of that — although we'd like our ef- forts to prevent it, let me be clear — but it's to have the proper poli- cies in place so that we're dealing with it appropriately." 'It's a tricky area of the law' STARBUCKS < pg. 1 Credit: David Ryder (Reuters) Starbucks chief digital officer Adam Brotman demonstrates the company's new mobile ordering system in Seattle, Wash., in March.

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