In 2010, the Occupational Health and Safety Act (Ontario) was amended to include the definitions of workplace harassment and workplace violence, as well as associated requirements for employers. Prior to that, harassment fell under the Ontario Human Rights Code (OHRC) and was limited to the prohibited grounds as defined by the OHRC. However, since 2010, employees have had another avenue to bring forward concerns about workplace harassment and violence: the OH&S Act. Most recently, in September 2016, the Occupational Health and Safety Act was amended again (Bill 132) to include sexual harassment and sexual violence, with additional compliance requirements for employers and obligations for all workplace parties.
Implications for employers
With the latest amendments to the OH&S Act, employers are reminded of their obligation to have workplace harassment and violence prevention policies updated to include provisions for sexual harassment and sexual violence. It is important that they train all employees on these policies/procedures, have procedures/protocols in place for workplace parties to bring forward complaints under the Act and conduct timely and professional investigations of these complaints. In addition, the Ministry of Labour has been given the authority to issue orders to employers to engage an external, qualified investigator to undertake the investigation of a workplace complaint at the employer's expense. Other amendments clarify the rights of employers to manage the performance of employees without these efforts being deemed harassment.
Undertaking an investigation
Whether brought forward under the OH&S Act or the Ontario Human Rights Code, harassment and sexual harassment investigations are serious matters. They need to be dealt with professionally and with sensitivity. Employers may want to turn to external consultants to undertake an investigation on your behalf. An independent and objective investigator will be able to review the complaint and determine – through interviews, collection of data and a review of relevant documents – whether the allegations are substantiated or not. They can also provide recommendations for a full range of potential next steps such as a consideration of restorative measures.
Taking responsibility
It's important for employers to ensure that workplaces are safe from risks that have emotional, physical and other kinds of impacts on employees. A large portion of the work our firm does to assist employers with harassment investigations is geared towards making workplaces more respectful, whether that means helping solve existing problems, developing policies or delivering training to prevent further problems in the future. Prevention and early detection/management are key.
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