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Workplace violence awareness and prevention: is there a legal duty on employers to take appropriate steps to prevent exposing employees to workplace violence?

Workplace violence awareness and prevention: is there a legal duty on employers to take appropriate steps to prevent exposing employees to workplace violence?


1. Introduction

Most people think of violence as a physical assault. However, workplace violence is a much broader problem. It is any act in which a person is abused, threatened, intimidated or assaulted in his or her employment. Workplace violence includes:

>> Threatening behaviour - such as shaking fists, destroying property or throwing objects

>> Verbal or written threats - any expression of intent to inflict harm

>> Harassment - any behaviour that demeans, embarrasses, humiliates, annoys, alarms or verbally abuses a person and that is known or would be expected to be unwelcome (This includes words, gestures, intimidation, bullying, or other inappropriate activities)

>> Verbal abuse - swearing, insults or condescending language

>> Physical attacks - hitting, shoving, pushing or kicking

Rumours, swearing, verbal abuse, pranks, arguments, property damage, vandalism, sabotage, pushing, theft, physical assaults, psychological trauma, anger-related incidents, rape, arson and murder are all examples of workplace violence. Other examples include bullying and ganging up or mobbing: a growing problem in Australia, Austria, Denmark, Germany, Sweden, the United Kingdom and the United States, it involves ganging up on or mobbing a targeted employee and subjecting that person to psychological harassment. Mobbing includes such behaviour as making continuous negative remarks about a person or criticizing them constantly; isolating a person by leaving them without social contacts; gossiping or spreading false information. In Sweden, it is estimated that mobbing is a factor in 10 to 15 percent of suicides.

In most instances, employees who engage in such actions would fall foul of not only the common law duties of employees but also specific internal disciplinary codes of conduct. What is of interest is whether there is an associated obligation on employers to prevent workplace violence in much the same way that there is a positive duty on employers to implement a policy against sexual harassment in the workplace. [See section 6(1) and (2) of the Code of Good Practice on Sexual Harassment]

2. General duty clause

The Occupational Health and Safety Act (Act 181 of 1993) has a general duty clause which places a general duty on employers to ensure the health and safety of employees:

"General duties of employers to their employees: 8. (1) Every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees. "

The Act then provides for specific employer duties. These specific duties do not derogate from the generality of an employer's duties.

This general duty clause is a common provision in most Health and Safety legislation in various countries. In many of these jurisdictions, the "general duty clause" includes a duty to protect employees from workplace violence. Traditionally, the general duty clause was not extended to protection from violent employees, but rather focused on ensuring safe working equipment and a safe and healthy working environment.

The extension of this "general duty clause" to include the duty to protect employees from the violent behaviour of work colleagues represents a logical development in health and safety jurisprudence.

Most Canadian jurisdictions have a similar "general duty provision" in their Occupational Health & Safety legislation, which requires employers to take all reasonable precautions to protect the health and safety of employees. British Columbia and Saskatchewan have specific workplace violence prevention regulations. Nova Scotia has draft workplace violence regulations. In the United States, there is a "General Duty Clause" in the Occupational Safety and Health Act. The General Duty Clause would include recognized threats of violence. California has legislation that requires businesses to have a workplace injury prevention plan and a specific law to combat violence in hospitals. Washington and Florida have laws in place to protect against certain types of retail violence. Similar developments can be seen in the EU countries and Australia.

In the United States, supplementing the "general duty provision" is a common-law principle of "negligent hiring". Under this (USA) "common law" doctrine of negligent hiring or negligent retention, employers must protect workers from individuals who have demonstrated a propensity to behave violently towards others. An employer owes a duty of care to those with whom its employees may forseeably interact as a consequence of their employment. This duty imposes an obligation on employers to hire and retain employees reasonably believed to be safe and competent and to make a reasonable inquiry based on the nature of the position, the risk to others posed by a person in that position, and the harm if that risk becomes reality.

Currently in our law, there seems to be no reason why such a duty to protect or limit the exposure of employees to workplace violence cannot be read into the "general duty provisions" of the Occupational Health and Safety Act. This view is supported by the preamble to the Act which provides as follows:-

>> To provide for the health and safety of persons at work and for the health and safety of persons in connection with the use of plant and machinery;

>> The protection of persons other than persons at work against hazards to health and safety arising out of or in connection with the activities of persons at work.

Some authors have approached the problem of workplace violence not in terms of Health and Safety legislation but in terms of the constitutionally entrenched provisions of the right to freedom and dignity (see especially the right to be free from all forms of violence from both public and private sources (Bill of Rights, section 12(c)), and the right to dignity. These rights form the basis of emerging workplace rights against Bullying in the Workplace. Extensive research in this area can be found not only in the UK, EU and Australian jurisdictions, but also in South Africa through the pioneering work of Dr. Susan Marais-Steinman (see the work performed by her Institute at http://www.worktrauma.org)

3. Addressing workplace violence

Certain work factors, processes, and interactions can put people at increased risk from workplace violence. Examples include:

>> Working with the public

>> Handling money, valuables or prescription drugs (e.g. cashiers, pharmacists)

>> Carrying out inspection or enforcement duties (e.g. government employees)

>> Providing service, care, advice or education (e.g. health care staff, teachers)

>> Working with unstable or volatile persons (e.g. social services, or criminal justice system employees)

>> Working in premises where alcohol is served (e.g. food and beverage staff)

>> Working alone, in small numbers (e.g. store clerks, real estate agents), or in isolated or low traffic areas (e.g. washrooms, storage areas, utility rooms)

>> Working in community-based settings (e.g. nurses, social workers and other home visitors)

>> Having a mobile workplace (e.g. taxicab)

>> Working during periods of intense organizational change (e.g. strikes,downsizing)

In 1998 the ILO released a 159-page report on the problem of Violence in the Workplace. The Report concludes with the following recommendations:

The response to violence should be multi-faceted:

>> Preventive, looking at the causes behind the violence, not only at its effects

>> Targeted, because you cannot attack every kind of violence in the same way

>> Multiple types of response are needed

>> Immediate, a planned response of immediate intervention should be ready ahead of time to contain the effects of violence, much as the response to terrorist situations is planned and imposed immediately

>> Participative, in that all the people directly and indirectly part of the violence, including family members, top management, colleagues and victims, become involved

>> A long-term response, in that a follow up is needed because the consequences of violence are also long-term, so that a response restricted to the immediate one is not enough

In confronting violence a comprehensive approach is required. Instead of searching for a single solution good for any problem and situation, the full range of causes that generate violence should be analysed and a variety of intervention strategies adopted. The response to workplace violence is too frequently limited, episodic and ill defined.

In our next edition we will address specific actions which employers can take to limit the incidence of workplace violence through appropriate training interventions and policy recommendations. Whether or not their exists a duty on employers in regard to workplace violence specifically, good human resource practice dictates that workplace violence be addressed, especially taking into account the prevalence of crime and criminal activity in South Africa. Raising employee - and therefore public - awareness about potentially threatening situations and how to address, avoid or limit workplace violence would go a long way towards restoring our society to normality and enjoying the fruits of our new found freedoms and rights and sound economic infrastructure.

Gary Watkins

Gary Watkins

Managing Director

BA LLB

C: +27 (0)82 416 7712

T: +27 (0)10 035 4185 (Office)

F: +27 (0)86 689 7862

Website: www.workinfo.com
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