On August 12, 2016, the Ontario Ministry of Labour published its "Code of Practice to Address Workplace Harassment under Ontario's Occupational Health and Safety Act" (the "Code"). Given the rapidly approaching date upon which Bill 132 comes into force, and its extensive requirements, this guide to Bill 132 from the Ministry was anxiously awaited.
The Code provides some helpful guidance for employers with respect to complying with the new requirements coming into effect as of September 8, 2016 under Bill 132. For an outline of those requirements, please see our earlier blog post here.
The Code addresses four areas of compliance for employers:
- Developing a Workplace Harassment Policy;
- Developing a Workplace Harassment Program;
- An Employer's Duties Concerning Workplace Harassment; and
- Providing Information and Instruction on a Workplace Harassment Policy and Program.
Each Part contains general information, excerpts of the relevant Occupational Health and Safety Act (the "OHSA") provisions, and practice guides which may be followed by an employer in order to comply with the specific provision.
The Code also attaches a number of Schedules of practical benefit for employers, including a sample Workplace Harassment Policy, a sample Workplace Harassment Program, and an Investigation Template.
Developing a Workplace Harassment Policy and Program
The Code provides some guidelines for employers in terms of designing their Workplace Harassment Policy and Program, including identifying key elements to include in the Workplace Harassment Policy, such as the OHSA definition of workplace harassment (including the definition of workplace sexual harassment), and a clear statement that the policy addresses workplace harassment from all sources, including customers, clients and members of the public.
It also outlines what must be included in a Workplace Harassment Program, including procedures by which an employee may report workplace harassment to the employer or a supervisor, and for reporting to an alternate contact in the event that the employer or supervisor is the alleged harasser, the type of information to be collected in a report of the incident and details of how an incident or complaint will be investigated. It also specifies the type of documents that should be maintained, for at least one year, in connection with a workplace harassment complaint or incident, such as a copy of the complaint, notes from the investigation, witness statements, copies of the investigation report, and other related documents.
An Employer's Duties with Respect to Workplace Harassment
Pursuant to the new requirements, an employer will be required to conduct an investigation which is "appropriate in the circumstances" whenever there is a complaint or "incident" of workplace harassment. The Code confirms that the duty to investigate is triggered by either a formal complaint, either written or verbal, or when an employer otherwise becomes aware of an incident of workplace harassment.
The Code also provides some insight into what elements are required in order to constitute an "appropriate investigation". In order to ensure investigations are conducted in a timely manner, the Code requires that investigations be completed within 90 calendar days (absent extenuating circumstances). It also requires that investigators be objective (e.g. not the alleged harasser or under the control of the alleged harasser), and establishes seven key steps to an investigation. These steps include:
- ensuring that the investigation and any identifying information is kept confidential and not disclosed, except as necessary to conduct the investigation and as required by law;
- conducting a thorough investigation,
- interviewing both the complainant and respondent;
- giving the respondent an opportunity to respond to the allegations raised;
- interviewing relevant witnesses; and
- collecting and reviewing any relevant documents.
- taking appropriate notes and statements during interviews; and
- preparing a final written report summarizing the steps taken during the investigation, the complaint, the allegations of the harassment, the response of the respondent, the evidence gathered, setting out findings of fact and ultimately reaching a conclusion about whether workplace harassment was found.
The Code also requires that the results of the investigation, and any corrective action taken (or to be taken), be provided to the complainant and the respondent within ten calendar days of the investigation being concluded.
Providing Information and Instruction
The Code sets out an employer's obligation to provide all employees with information and instruction on the contents of the Workplace Harassment Policy and Program, including:
- what conduct is considered workplace harassment
- how to recognize it
- how and to whom to report incidents of harassment
- how the employer will investigate and deal with the incident of harassment and
- how the results of the investigation will be reported to the complainant and respondent.
The Code recognizes that additional information and training will need to be provided to supervisors and managers, investigators, and Joint Health and Safety Committee members or health and safety representatives, who will have additional responsibilities.
The practices suggested in the Code are not the only means of compliance, and it is not exhaustive, but they are helpful for employers in terms of identifying the elements that a Ministry of Labour health and safety inspector may focus on.
Employers should take steps to ensure their existing Workplace Harassment policy is updated to address the new requirements coming into effect as of September 8, 2016 and make arrangements to provide appropriate training to its employees and managers. Going forward, employers should be mindful of the obligation to investigate harassment even in the absence of a formal complaint, and ensure that investigations are conducted in a fair and timely manner, in compliance with their policy, and documented accordingly.
Failing to comply with Bill 132 is not an option. Employers that have heretofore ignored it do so at their own peril. The Ministry has now provided some practical guidance. Employers must take action and put policies and programs in place, and they must ensure that their workforce is trained on what to do in the event of harassment. Furthermore, employers must investigate incidents of harassment properly or risk an order that an independent investigator will be retained at their expense.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.