Violence and Working Abroad

An amendment to protect Ontario workers against workplace violence and harassment came into effect in June 2010.The broad focus of Bill 168, an amendment to the Ontario Occupational Health and Safety Act (OHSA), will require every employer in Ontario with more than five employees to develop and implement a comprehensive violence prevention program. Mandatory elements of the bill include risk assessments, policy development, communication procedures and training obligations.

At the federal level, Bill C-45, the contents of which focused on the criminal liability of organizations, was passed in March 2004.The passage of the bill allowed the government to amend the Criminal Code of Canada. The legislation makes it clear that the duty of decision makers is “to take reasonable steps to prevent bodily harm to … any person arising from work.” Failure to comply may have implications for both the individual decision makers and their organizations.

Generally speaking, using common sense and following guidelines from organizations such as the Canadian Centre for Occupational Health and Safety (CCOHS) will allow most companies, including insurance companies, to meet their obligations and demonstrate due diligence. However, the level of risk to the employee must be considered when determining training requirements. For example, an insurance professional who works in the corporate headquarters is at a much lower risk than an insurance professional who has to provide bad news personally regarding a claim or some other matter. Therefore, a ‘one-size-fits-all-employees’ training policy is not appropriate; it suggests no internal risk assessment has been done.

REASONABLE EXPECTATIONS

Under the Canadian Labour Code, an employer is obligated to provide a reasonably safe work environment. However, if that work environment involves working on a dam project in Colombia, an oil well in Algeria or exploring for minerals in Pakistan, then duty of care would include a responsibility to warn employees of the risks and to prepare (educate and train) them adequately and appropriately. The obligation on the organization is to take reasonable and appropriate steps to ensure the physical and mental safety of the workers while they are overseas. Thus, in the same way we provide First Aid training for employees so they can deal with a medical event or emergency, an employee can reasonably expect to receive training to deal with such events as kidnapping if they are to be employed overseas or sent to areas where the risk of kidnapping is high. A recent legal opinion stated: “Liability could result if the company or organization omitted to provide or prepare for something, which ought reasonably to be done.” In the long run, proper preparation can easily mitigate and reduce this liability; this includes training management’s response to an incident.

For other potentially dangerous or life-threatening events, organizations have risk-mitigation strategies in place that include management response. Take the risk of fire, for example. Not only do we practice fire drills in the workplace, we appoint fire coordinators or marshals to manage the incident. When the fire brigade arrives, someone is ready to brief them on employee location, status and other organizational details. If a company’s employee gets into trouble abroad, or is even taken hostage, is there anyone who is trained and prepared to provide the correct information to DFAIT, the RCMP or other government departments when they arrive to help? A delay in providing the correct details in both situations could be very costly.

Unlike in situations such as a fire, hostage-takings or other overseas incidents such as wrongful detention can be long, drawn-out and very public affairs, sometimes lasting years. During this time, there may be a continuous requirement to support the family and colleagues, respond to media enquires, liaise with government representatives, provide bills and estimates to insurance companies and other groups, as well as a myriad of other small tasks. Companies may be bombarded with questions such as: What is being done? Are they still being paid? Do they get overtime? Can a family member who doesn’t have power of attorney have access to the wages being paid by the organization? Concurrently, detained employees may also be interviewed by the media, and may publicly ask the organization to care for their family for the duration.

Beyond publicity, other costs to the organization should be considered. If the individual taken was the top engineer or ‘prospector’ in this field, will the shareholders be concerned? If the organization is busy dealing with this incident, are there lost production costs? If it turns out you were not prepared, how will this affect your personnel’s willingness to undergo overseas tours on your behalf in the future? Were the actual costs of an incident assessed correctly?

RISK MITIGATION AND LIMITING LIABILITY

Plan, prepare, prevent and respond — that is the formula for success.

Planning includes a risk assessment. Where are the employees going? What are the risks associated with their destination? In a recent worldwide study, Venezuela, Nigeria, Mexico, Pakistan, India and Afghanistan were listed as the six riskiest countries to visit in terms of kidnapping. The next six were Honduras, Brazil, Philippines, Somalia, Colombia and Haiti. Canada has trade links with nearly all of these countries; for a majority of them, official DFAIT travel warnings have been issued. Beyond considering the country itself, an organization should consider in which part of the country their personnel will be working, for what reason (i. e., will their work affect the environment? local communities? the local economy?, etc.), what support is available in country and other factors.

Preparation may include both education and practical training. The training offered should be scaled to the risk and threat to personnel. In other words, a risk analysis should drive the degree of education and/or training required. Practical training, for example, is likely only required in those cases where the likelihood of kidnap is extremely high (i. e., countries ranked among the Top 6 risks). But what separates good training from bad training? At a minimum, companies offering this type of training should be staffed with subject matter experts, including psychologists, who have specialized experience in the field of captivity. Furthermore, the training offered should be grounded in science, particularly Stress Inoculation Theory. Case studies have shown that using trainers or psychologists who do not fully understand this complicated area can actually cause harm, thereby increasing the organization’s liability. Just being ex-Special Forces doesn’t give people a qualification. Most Special Forces (certainly in Canada, the United States, United

Kingdom, New Zealand and Australia) are taught by other people who have specialized training and are qualified in this area. Ask them.

The training offered should be scaled not only in terms of degree of intensity and duration, but also in terms of how it is delivered. Options include simple e-learning packages, short facilitated training sessions for executives or multiple- day training courses for people working in places such as Mexico or Colombia. A good training organization will tailor their training to the client and be flexible enough to meet their needs; it should also offer education for any management team members that may be involved in any form of incident response.

Prevention is achieved through following plans and learning from training. However, luck also plays a role: every now and then, bad things happen to good people. If and when it does, then the response plans developed at the planning stage and rehearsed as part of preparation kick in. Even bringing people back from an incident overseas can have its issues. If a proper decompression protocol is not followed (for which best practices do exist), then it is likely the organization — or the insurers thereof — will incur more cost in supporting the returnee after the event.

What mechanism does the organization have for tracking or monitoring their personnel? Who is notified, and using what mechanism? What details will the government response want? Are they held in a centralized, secure repository? All of these questions should be analyzed as part of planning. They should be answered as part of the preparation, and the answers should be made deliverable as part of the response. Best practices in a number of these areas should be met or exceeded.

SUMMARY

In summary, violence can and does occur in the workplace. Such an event is much more complex if it happens to take place overseas. If an organization has no plans in place, has not prepared or finds that prevention has been unsuccessful, then the risk of a failed response is much greater; this increases the risk to the individual and the organization simultaneously. An integrated solution starts at the top, with policy, which leads to plans, procedures and timely assessments.

In purchasing personal insurance (be it life, property or car insurance), I would assess my requirements, and then purchase suitable insurance from qualified professionals. Likewise, an organization, having assessed its requirements, should buy its training from qualified professionals. This limits the risk, gives the organization’s management team (and investors) peace of mind and demonstrates due diligence towards protecting employees and their families.

———

Violence can and does occur in the workplace. Such an event is much more complex if it happens to take place overseas.

———

Planning includes a risk assessment. Where are the employees going? What are the risks associated with their destination?