As we have
previously reported, Bill 132's amendments to the workplace
harassment provisions of the Ontario Occupational Health and
Safety Act came into force on September 8,
On September 13, 2016, the Ministry of Labour published an
updated version of its guide, Workplace Violence and
Harassment: Understanding the Law (the "Guide"),
which now includes guidance on the Bill 132 amendments. The
Guide seeks to explain, in plain language, "what every worker,
supervisor, employer and constructor needs to know about workplace
violence and harassment requirements in the Occupational Health and
Safety Act" and also answers frequently asked questions about
the OHSA. In particular, the Guide clarifies the following points
about the OHSA's workplace harassment provisions:
The suggested content of a workplace harassment policy, which
is not otherwise set out in the OHSA;
Examples of "reasonable action" that do not
constitute workplace harassment under the OHSA;
That employers can combine their workplace harassment policies
and programs into one document or combine both documents with other
workplace policies of the employer (e.g. workplace violence
policies, anti-harassment or anti-discrimination policies, etc.),
as long as all of the OHSA's requirements are complied
That someone either internal or external to the organization
can receive reports of workplace harassment, as long as the report
is addressed objectively and investigated in an appropriate
The characteristics of an "appropriate"
investigation, including: who can investigate complaints, suggested
stages of a complex investigation, and suggested timeframes for
Examples of "corrective action" and how to provide
the results of the investigation to involved parties in situations
where the alleged harasser has left the organization;
When and how employers should conduct a review of their
existing workplace harassment programs;
The scope of the employer's duty to provide workers with
"information and instruction"; and
Who is an "impartial person" who could conduct a
harassment investigation ordered by a Ministry of Labour inspector
under the OHSA's new enforcement mechanism.
The Ministry of Labour confirms that, unlike the Ministry's
Code of Practice for Workplace Harassment (which we reported on
here), adherence to the contents of the Guide does not
constitute compliance with the law. However, the Ministry also
notes that its health and safety inspectors may refer to the Guide
when enforcing compliance with the OHSA. As such, the Guide is a
helpful resource for employers when creating, reviewing and
implementing their workplace harassment policies and programs. The
Guide can be accessed here.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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