An employer was recently found not to be responsible for workplace injuries after a worker was physically assaulted while admitting a female inmate into custody. In Ontario Public Service Employees Union (Grievor) v Ontario (Solicitor General), the Ontario Grievance Settlement Board (the “Board”) found that the worker was responsible for her own injuries, which were caused by her failure to follow intake procedures.

Facts

The worker was a registered nurse at a detention facility. At the time of the injury, she had 4 months of service at the facility and no prior experience working in a detention centre, although she had nearly 20 years experience as a nurse in a medical environment. The worker was responsible for conducting medical assessments of incoming female offenders, which took place on a bench in a shower area and could be viewed by correctional officers through a window.

Workplace procedures required a correctional officer to be present next to the nurse during medical assessments for the safety of both the individual being examined and the nurse. A second correctional officer was also required to be present, though behind a counter.

Prior to the injury, the worker had questioned the procedure and the requirement to have a correctional officer stand next to her during medical assessments as she was concerned for the privacy of the offenders. The worker sought to maintain privacy when speaking with offenders and conducting examinations and had attempted to have the officers stand further away during examinations. The worker was reminded of the policy, the reasoning behind it, and the potential consequences should she fail to comply with the policy.

The injury occurred after the worker responded to a call to admit an offender, who had been brought to the facility after attempting to commit three murders. Rather than waiting for the correctional officers to complete paperwork and attend the medical assessment with her, the worker met the offender in the shower area and began the examination without the officers present. Towards the end of the examination, the offender asked the worker a question and then punched her in the face. This caused the worker to fall backward into a wall, where laundry bins fell on her. The worker claims to have momentarily lost consciousness while the offender was restrained by correctional officers.

The worker was subsequently treated by another nurse and spoke with a sergeant, who assisted her in making a statement about the assault. She chose to wait for the police to arrive before a co-worker took her to the hospital. The worker later drove herself home without incident.

The worker did not return to work and claimed that the employer had violated terms of the collective agreement and the Occupational Health and Safety Act [OHSA], which requires employers to take every reasonable precaution to protect workers.

The Decision

Worker’s Failure to Comply with Policy

The Board found that the injury resulted from the worker’s failure to follow procedure, rather than from any failure on the employer’s part to have reasonable policies in place to guard against assault during an intake examination. The Board concluded that the worker’s injuries occurred because she elected to proceed with the medical assessment without a correctional officer present for her safety.

The Board emphasized that the worker had been advised of the necessity of the procedure. It relied on evidence from the attending sergeant, who testified that the worker had pushed back on the policy and had been spoken to twice about the importance of following the intake procedure. Additionally, evidence from a correctional officer indicated that the worker preferred conducting medical assessments in private and had previously attempted to have the officers stand further away during examinations.

Based on this evidence, the Board concluded that the worker knowingly violated the intake procedure, which, if followed, could have been prevented the worker’s injuries. Further, the Board found that the employer responded reasonably when the worker challenged protocol by speaking with the worker and reiterating the procedure to be followed.

Employer’s Conduct Post-Assault

The Board found that the employer met its obligations under the OHSA by taking reasonable precautions and providing appropriate support to the worker after the assault.

The worker received interim medical care at the workplace from an on-site registered nurse, which included antibiotics, ice for the swelling of her lip, and an inspection of her mouth. While the worker claimed that the employer delayed in taking her to the hospital, testimony from co-workers did not support this. The testimony revealed that the worker insisted on waiting at the workplace for the police to arrive and to provide a statement. Further, testimony indicated that the worker was lucid, had no slurred speech, and was able to walk without assistance.

The worker also claimed that the employer failed in its obligations under the OHSA by permitting her to drive herself home after the hospital visit. The Board disagreed, finding instead that the employer acted reasonably, as the worker displayed no visible signs of injury and had no difficulty walking.

The Board highlighted that the worker did not inform her employer that she was uncomfortable driving herself home, nor did she ask for a ride or use a ride-share program. The Board stressed that the absence of proactive steps taken by an employer does not necessarily constitute a failure to take reasonable precautions regarding the health and safety of workers.

Takeaways:

This case highlights best practices for employers to reduce the risk of employees not following workplace policies and procedures, including:

• Review and Revise Workplace Policies: Employers should regularly assess and update workplace policies and procedures to ensure they reflect current working conditions and clearly communicate employee expectations regarding compliance.
• Provide Necessary Training: Employers should provide training on workplace policies and procedures to promote compliance and understanding among employees. It’s also important to promptly respond to any questions or concerns from employees.
• Record Keeping: Employers should maintain records of policy training for each employee, including the dates the training was conducted. Employers should also document any instances of non-compliance or employee resistance to policies and procedures.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.