Employees should never have to deal with harassment or violence within their workplace and it should not be tolerated by employers in any circumstance. Sadly, this has not always an accurate portrayal of the day-to-day environment of workplaces in Canada. The Human Resources Professionals Association deemed workplace harassment and violence as an "Epidemic" in 2018. Research has shown that incidents of workplace harassment and violence are often unreported by employees or unresolved by employers.
Thankfully, the long-awaited changes to the Canada Labour Code through Bill C-65 are intended to address these issues. The amendments to the legislation and the stand-alone new regulations came into force on January 1st, 2021. The purpose of Bill c-65 is to ensure that federally regulated workplaces focus on prevention, response and support in regards to issues of harassment and violence. The approach to this is both proactive and reactive.
Some of the notable changes include:
Updated Definition: The new definition of harassment and violence is "any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment".
A Designated Recipient: Employers are now required to select a "designated recipient" to receive any complaints of harassment and violence. This can be an employee, a work unit like a Human Resources Department or a hired third- party. This provides employees with a pre-determined avenue to raise concerns with their employer without having to go to direct supervisors or management. It takes a lot of courage to report harassment and violence in the workplace and often employees will not report the issue because they fear retaliation by the employer or the alleged perpetrator. Having a designated recipient will hopefully encourage more employees to address harassment and violence in the workplace.
Mandatory Training: The Employer is now required to provide training to all employees that is specific to culture, conditions and activities in the workplace. This training will notify employees of the elements of workplace harassment and violence, that it is not tolerated in the workplace, and what to do if there is an occurrence. It also informs witnesses that they too have a voice in their workplace regarding harassment and violence and can speak up for others when they notice any concerning behaviour. The employer and employees must undergo the mandatory training on or before December 31st 2021 and any new hire requires this mandatory training within three (3) months of being hired. The designated recipient must undergo this training as well but should take the training before assuming the role. After that, every three (3) years the mandatory training should be taken. The mandatory training must be provided by qualified and knowledgeable trainer or training service. Please contact our office if you require the mandatory training for your organization. We provide self-paced webinars as well as live presentations in person or via video call or conference call.
Mandatory Workplace Harassment and Violence Prevention Policy: Employers are now required to jointly develop and implement a policy in their workplace that outlines the process of dealing with any occurrences, mandatory training, risk factors, roles of parties, privacy protections, support measures, emergency protocols, workplace assessments, and any recourse available. This policy must be put in place within one (1) year of the amendments to legislation (December 31, 2021). Please contact us if you would like our assistance in meeting your compliance obligations with regards to updating your policies to align with Bill C-65.
Assessment of Risk Factors: Employers are now required to identify both internal and external risk factors within the workplace that may increase the risk of harassment and violence. These must take into consideration the culture, conditions, activities and organizational structure of the workplace as well as circumstances outside the workplace. External factors like family violence can increase the risk of harassment and violence within the workplace. Internal factors like the physical design of the workplace and proximity to other workers or clients should also be considered. Employers also need to look at what measures are in place to protect psychological health and safety as well. Once these risk factors are identified, employers need to develop ways to mitigate these risks as best they can and implement preventative measures to help protect employees. We will be able to assist you in conducting this risk assessment after May 15th 2021.
Comprehensive Resolution Process: As mentioned, many cases of harassment and violence have gone unreported or unresolved. This may have resulted from the lack of a clearly outlined resolution process for both the employer and employee to follow. The regulations remedy this by providing a detailed resolution process with timelines to follow. This process includes negotiated resolutions, conciliation within 180 days of the report and failing which it will be transferred to a formal investigation. The investigation must be finished within one year of the reporting of the incident. Once a matter has gone to investigation, a negotiated resolution is no longer available.
Investigation: Prior to Bill C-65, incidents of violence in the workplace had to be investigated, but there was no explicit duty to investigate harassment. The new changes bring forth a duty to investigate, record and report all instances of harassment and violence of which the designated recipient or the employer becomes aware of. The employer and the designated recipient must now select an investigator from an approved list that was created by the employer and the applicable partner (if possible). If there isn't a list, or they cannot mutually agree on an investigator with 60 days after the notice was provided, then an investigator will be appointed. The Canadian Centre of Occupational Health and Safety identifies appropriate investigators based on their knowledge, training and expertise. The only requirement for an investigator within the previous regime was that they had to be competent. The threshold for investigators is now much higher. Investigators must have knowledge, training and experience that is relevant to harassment and violence in the workplace, be trained in investigative techniques and have good knowledge of the Canada Labour Code, the Canadian Human Rights Act and other relevant legislation. The investigator is required to render a report with a general description of the incident, the investigator's conclusions as to whether the occurrence amounted to harassment and violence, the circumstances of the workplace that may have contributed and the investigator's recommendations to minimize or eliminate the risk of harassment and violence occurring again within the workplace. Copies must be provided to the parties of the notice of occurrence. Employers are then expected to review and implement these recommendations wherever possible. This duty to investigate ensures that employers take action when issues of harassment and violence in their workplaces are brought to their attention.
These changes will require employers to take a more active role in the prevention, response and support regarding workplace harassment and violence. Please contact our office if you would like us to assist you in updating your policies, assist you with the risk assessment or to provide the mandatory training to either all your employees or to the upper management in order to meet your compliance obligations under Bill C-65.