Williams HR Law LLP

Workplace Investigations: Part 2 – the Impact Of New Legislation to Address Sexual Violence and Harassment

September 6, 2016

[vc_row][vc_column width=”1/3″][vc_single_image image=”183″ img_size=”full”][/vc_column][vc_column width=”2/3″][vc_column_text]Earlier this summer, we introduced our three-part series on workplace investigations (link here) by explaining what they are and offering some proactive strategies

for employers to use to ensure that they are conducted properly. In this post, Part 2 of the series, we look at Bill 132, which comes into force on September 8, 2016, and is poised to affect sweeping changes in HR policy across Ontario workplaces.

The legislation, born of the province’s 2015 report entitled It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment, has far-reaching implications that extend to all forms of workplace harassment. Bill 132 strengthens some of the Occupational Health and Safety Act(“OHSA”) reforms that the government introduced in 2010 with Bill 168, Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace).

What are the Bill 132 amendments?

Bill 132 amends six acts. The most important amendments for employers and workplaces are those in Schedule 4 of the new legislation, which amends the OHSA. Bill 132 introduces new definitions of “workplace harassment” and “workplace sexual harassment”:

“workplace harassment” means,

(a)  engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or

(b)  workplace sexual harassment.

“workplace sexual harassment” means,

(a)  engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or

(b)  making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.

What Bill 132 means for your organization

The Bill 132 amendments create important new responsibilities and obligations for employers.

Generally, employers will face greater legal exposure for failing to prevent workplace harassment under the OHSA. One of the chief implications is that employers will now be legally required to investigate incidents and allegations of workplace harassment and sexual harassment. Employers will have an obligation to keep resulting workplace harassment investigation reports confidential, unless the disclosure is necessary for the purposes of investigating or taking corrective action with respect to the incident or complaint, or is otherwise required by law. If the employer does not conduct an investigation that is appropriate in the circumstances, the Ministry of Labour can appoint an external investigator at the employer’s expense, which could be costly and disruptive to the organization.

The Bill 132 amendments will also:

  • Require employers to develop and maintain, in conjunction with their health and safety committee or representative, a written program to implement their workplace harassment policies. The programs and policies will have to be reviewed at least annually, or more frequently if required. Bill 132 sets out some requirements for the program’s contents, such as procedures for workers to report harassment to someone other than the supervisor or employer, if the supervisor or employer is the alleged harasser. Furthermore, Bill 132 requires employers to provide appropriate information and instruction for their workers on the contents of the harassment policy.
  • Obligate employers to investigate complaints and incidents of workplace harassment as mentioned, but also to inform the allegedly harassed employee and alleged harasser of the investigation results in writing.
  • Codify current case law to legislate that normal management and direction of workers will not constitute harassment.
  • Amend the Limitations Act, 2002, which will remove limitation periods within which civil claims for sexual assault, and in some circumstances serious misconduct of a sexual nature or assault, can be brought. The change will apply retroactively. Unlike the amendments to the OHSA, which come into force on September 8, 2016, this amendment came into force on March 8, 2016.

While employers will have to manage many new obligations, they will retain the right to discipline workers where necessary.

What your organization needs to do

Act now to clarify expectations of acceptable workplace behaviourEmployers should begin to implement and communicate the changes to their workplace policies now to ensure compliance with the Bill 132 amendments to the OHSA. Employers should develop thoughtful policies and procedures, relevant to the characteristics of their workplace, and/or revise existing policies, and ensure that conduct expectations are clearly communicated to workers.

Develop a workplace investigation protocolFurthermore, employers should consider developing a specific procedure for workplace investigations, and consider the circumstances under which workplace investigations should be conducted by internal or external investigators. To maximize the chances that an investigation will be properly conducted, and to minimize cost and disruption to the workplace, employers should keep careful records, and investigate all complaints and incidents of workplace harassment and sexual harassment.

Implement a system to address employee complaintsMore generally, employers should aim to foster a culture of shared responsibility for preventing workplace harassment. Employers should enforce their workers’ legal obligations to minimize hazards by ensuring that all workers understand their obligations, while creating accessible mechanisms for workers to meet those obligations. Although many employers attempt to encourage workers to participate in the mitigation of workplace hazards by having a general open door management policy, this will not always suffice. The sensitive nature of harassment issues, and particularly sexual harassment issues, can be a barrier to candid disclosure of such incidents. Therefore, employers should create, implement, and communicate to their employees, comprehensive programs and procedures for bringing forward complaints and reporting incidents.

Look for Part 3 in our series on workplace investigations later this week, where we will examine the Code of Practice to Address Workplace Harassment under Ontario’s Occupational Health and Safety Act that was recently released by the Ministry of Labour to provide further guidance to employers in fulfilling their workplace harassment-related obligations under the OHSA.

 

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

This information is not intended as legal advice.

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