Bennett Jones
Written by Lori Sterling
The statistics are alarming—a 2017 federal survey found that 60 percent of women report having experienced harassment in the workplace and 41 percent stated that there was no attempt to resolve a reported incident. Further, 72 percent of respondents said they did not report the harassment because of fears about being not believed or perceived as a troublemaker by the employer or retaliation by the harasser.
Recognizing this, the federal government developed a harassment and violence in the workplace strategy for the federal sector. The centre piece is Bill C-65, which received Royal Assent on October 25, 2018, but is not yet in force. It will take at least another year before the regulations needed to make the legislation work are in place.
Bill C-65 sets out a three pronged approach:
- prevention of incidents;
- a robust and fair investigation process; and
- support for employees and employers involved in a complaint.
Although the legislation is only applicable to federal workplaces and parliament, the approach can be used by all employers who seek to demonstrate best practices in this area. The federal approach may also help employers when asked by unions for amendments to collective agreements relating to harassment protections.
Prevention
Bill C-65 requires mandatory training of employers and employees. In fact, the training provisions were enhanced as the Bill moved through the parliamentary process. The #metoo movement and high profile cases involving public figures have helped raise awareness generally but each employer should nevertheless make managers and employees aware of the employer’s specific approach and policies applicable to their workplaces.
Robust and Fair Investigation Process
The key new feature of the investigative requirements in Bill C-65 is that it is built into the occupational health and safety legislative regime. Violence, harassment and bullying are seen as a continuum of inappropriate conduct which impacts employees’ health and safety.
Highlights include:
- The Bill applies to not just employees but also interns and volunteers working for the employer. It also applies to a former employee in limited circumstances.
- There is no need for a formal complaint for the employer to be responsible for responding. Employers must follow up as soon as he or she becomes aware of harassment or violence. As a result, a third party can inform the employer who is then obliged to speak to the alleged victim to see if further steps are warranted.
- The definition of harassment is very broad, goes beyond sexual harassment and can include a single severe incident. Harassment can take place in many ways including through social media. The legislation also makes clear that domestic violence that takes place at work is covered.
- The policy will apply to employees not just at the regular place of work but also when they have to engage in social activities that are part of their job.
- While the occupational health and safety committee in each workplace reviews the policies, they are no longer directly involved in the investigation of a specific complaint unless the employee consents.
- Where parties are unable to resolve matters informally, a complaint can be filed which entitles the complainant to an investigation by a “competent person,” who is jointly selected by the employer and employee.
- There will be strict timelines for investigations and for the recommendations of the investigator which will be set out in the regulations.
- Subject to an appeal, the employer is bound to implement the recommendations of the investigator as long as reasonably practical.
- Employers and employees can appeal alleged breaches of this regime to the federal Labour Program, and appeals of that decision go to the Canadian Industrial Relations Board.
Support For Employees and Employers
The final pillar of a sound strategy is that of support to employees and employers who are involved in a harassment allegation matter. The recent federal budget announced $50 million in funding for support to employees and employers involved in a harassment allegation matter. This includes 1-800 numbers, online information and enhanced inspection of employer workplaces. Employers might also consider whether their benefit package covers medical assistance in these situations although it is not specifically mandated in the legislation.
If you have any questions about the above changes, please contact Lori Sterling or another member of the Bennett Jones Employment Services group.