Comparative analysis of various international workplace violence approaches and programmes.

1. Comparative analysis of various international workplace violence approaches and programmes. Excellante - Workplace Trauma Solutions Conference March 2004 Gary Watkins Workinfo.com www.workinfo.com

2. What behaviours are deemed to constitute workplace violence • European Commission in Dublin in May 1995 • Incidents where persons are abused, threatened or assaulted in circumstances related to their work, involving an explicit or implicit challenge to their safety, well-being and health. • Abuse: Behaviours that depart from reasonable conduct and involve the misuse of physical or psychological strength. • Threats: The menace of death, or the announcement of an intention to harm a person or damage their property. • Assault: Any attempt at physical injury or attack on a person including actual physical harm. Abuse covers all forms of harassment, including sexual and racial harassment, bullying and mobbing. • The above definition became a milestone for definitions across Europe.

3. The meaning of workplace violence • There is growing recognition that "violence" goes far beyond the reach of physical acts, to include various forms of psychological violence. In keeping with the terms of reference of the International Labour Organization (ILO - 1998) who conducted a sweeping survey of international workplaces, "violence" is defined in this survey as: • "any incident in which a person is abused, threatened or assaulted in circumstances relating to their work. These behaviours would originate from customers, co-workers at any level of the organization. This definition would include all forms of harassment, bullying, intimidation, physical threats/assaults, robbery and other intrusive behaviours"

4. Physical and psychological violence • WHO definition of violence (ILO/ICN/WHO/PSI, 2000): • Physical violence: The use of physical force against another person or group that results in physical, sexual or psychological harm. • Psychological violence: Intentional use of power against another person or group that can result in harm to physical, mental, spiritual, moral or social development.

5. Focus on sequence of minor acts • Focus on dignity • The fusion of bullying and mobbing

6. Terms used for physical violence • those incidents which cause major • injury, require medical assistance, • require first aid only • assault, assaultive incident • murder (SWE) • fatalities (OSHA) • physical or sexual assault • attack • abusive behaviour (CAL/OSHA) • threat ( verbal and non-verbal); threat of • assaults; threat of sexual nature;

7. Terms used for psychological violence • threatening behaviour • verbal abuse, verbal attack • non-verbal abuse (stalking) • bullying • “ganging up” • harassment (includes threatening letters, • phone-calls (SWE, ACT)) • health and safety hazards, including fear • intimidation

8. A different typology • Workplace violence can be separated into different types according to the aggressor and his/her relation to the affected work setting or worker. • Californian OSHA. Three broad types of workplace violence have been identified: • TYPE I : The aggressor has no legitimate relationship to the workplace and the main objective is to commit a robbery (cash, drugs) or other criminal act. (“External” violence) • TYPE II : The aggressor is the recipient or the object of a service provided by the affected workplace or the victim, e. g. a client, patient. This may include also relatives or friends of the clients. (“Client initiated” violence) • TYPE III : The aggressor has an employment-related involvement in the work setting. Usually it is a another employee , a co-worker, a supervisor, a boss , a student (“internal” violence).

9. What needs to be regulated - workplace violence mitigation • Basic Elements of a Workplace Violence Prevention Plan • Employment Process (Kelleher, 1996) • Pre-employment screening. • Background checks. • Termination process (Kelleher, 1996) • Know how to conduct termination. • Know when to conduct termination. • Have an appropriate place to terminate. • Have the appropriate people in attendance. • Evaluate the work environment for stress causing elements (Kelleher, 1996) • Address the problem towards a solution. • Intervention Program (Kelleher, 1997) • Counseling program. • Crisis management team. • Zero tolerance policy for violence. • Open communications. • Threat of violence reporting system. (Braverman, 1999)

10. What needs to be regulated - workplace violence mitigation • Education and Training (supervisor/employees) (Kelleher, 1996) • Know signs of trouble • · How to report threats • New policies (supervisors). • Conflict resolution. • Improve interpersonal skills. • New policies (employees) • Security Measures (Kelleher, 1996) • Evaluate current vulnerabilities

11. Interactive model of workplace violence

12. All professions treated the same?

13. All professions treated the same?

14. Special focus areas • Public service sectors • Catering and retail • Health care and social services • Education • Health care and social services

15. Comparison of approaches to workplace violence in various jurisdictions • Canada • Labour Code • Duties of Employers • Every employer shall ensure that the health and safety at work of every person employed by the employer is protected. • - take the prescribed steps to prevent and protect against violence in the work place;

16. USA • Respondeat Superior Under this doctrine, an employer may be held vicariously liable for the tortious conduct of an employee who was acting within the scope of his or her employment. The key issue here is what conduct falls within the "scope" of employment. • Negligent hiring An employer may be held liable for the negligent or tortious conduct of an employee if the employer is found to have breached the duty to use reasonable care in the screening and selection of paid and volunteer staff, particularly with regard to the elimination of those candidates whose backgrounds evidence the foreseeable possibility of violent or sexually abusive behaviors. • Negligent Entrustment An employer will most commonly be hit with a negligent entrustment action when an employee gets into an accident while driving a business-owned automobile. To prevail, the injured party must show that the employer entrusted a company vehicle to a known unfit driver and that the accident resulted from the employee's incompetence. Whether the employee involved was acting within the scope of employment is not a concern in a negligent entrustment case. The employer's negligent act of entrustment, not the scope of employment, forms the basis of the tort. • General Duty Clause

17. European Foundation for the Improvement of Living and Working Conditions, 2003 • The situation in Europe concerning the regulation of workplace violence is extremely varied and constantly changing. Within Europe, the spectrum of regulatory options has been covered. • According to Di Martino (2002c and 2002d), these different approaches to regulating and controlling the problems of workplace violence are a reflection of: • different perceptions and interpretations of workplace violence in European countries due to different cultural influences; • options available for tackling the increasing challenge of workplace violence, for example, using existing regulations or developing new regulatory instruments; and • different strategies as to the type of instruments to be used, favouring the progressive approach and flexibility of non-legislative ones or tackling the problem with straightforward legislation.

18. South Africa • Constitutional provisions against attacks on persons dignity • General provisions against discrimination and harassment in Bill of Rights, LRA, EEA (equality legislations) • Code of Good Practice (equality legislation) • Common law concept of vicarious liability for acts of employee in course and scope of employment • General duty clause (?) • Voluntary self-regulation • Disciplinary codes and regulations • Negotiated agreements to prevent WV • Criminal provisions • Assault, rape, grievous bodily harm etc

19. South Africa - course and scope of employment "vicarious liability" • Where a person is sought to be held liable for the wrongful act of an alleged servant the position has always been that it is for the plaintiff to prove that the person who did the wrong was (a) the servant of the party sought to be held liable and (b) that he performed the wrongful act in the course or scope of his employment.

20. Innes JA stated that: • ‘(a) plaintiff who seeks to make a master liable for the negligent act of a servant must prove that the servant was acting in the course of his employment. That onus may conceivably be discharged by inference from established facts; but it does not seem to me to be shifted by the mere proof that the act was done at a time when and a place where the servant was in his master’s employ.’”

21. A general duty • 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.

22. Conclusion • What is workplace violence? - definitions • What should a workplace violence programme regulate? • Should all professions be treated the same? • How do different jurisdictions address workplace violence? • What laws would be applicable in SA? • A single code of conduct, extension of OHSA “general duty” clause or reliance on “vicarious responsibility”