There are legislative changes on the horizon that will affect Ontario workplaces as part of the Ontario government's "It's Never Okay: An Action Plan to Stop Sexual Violence and Harassment."
Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016 received royal assent on March 8, 2016, and amends several acts in relation to sexual violence, sexual harassment and domestic violence, including the Occupational Health and Safety Act (OHSA), the Limitations Act, 2002, the Ministry of Training, Colleges and Universities Act, the Private Career Colleges Act, 2005, the Compensation for Victims of Crime Act, and the Residential Tenancies Act, 2006. For most employers, the changes that must be reviewed and complied with are found in the OHSA.
Effective September 8, 2016, Bill 132 will expand the workplace harassment policy and program requirements under the OHSA. In addition to revising the definition of workplace harassment to include workplace sexual harassment, the amendments impose new duties on employers to ensure an appropriate investigation is conducted where there is an incident or complaint of harassment, including sexual harassment, and to inform, in writing, the involved workplace parties of the investigation's outcome and any corrective action taken. Bill 132 also expands the powers of Ministry of Labour inspectors to be able to issue an order requiring an employer to have a third party conduct an investigation into a complaint or incident of workplace harassment.
In order to comply with the Bill 132 amendments to the OHSA, employers must revise their policy and program — in consultation with the joint health and safety committee or the health and safety representative — to include the following:
- To the extent that it does not have a written program, develop and maintain a written program to implement the policy (previously there was no requirement for the program to be written). The policy and the program can be combined in one document.
- Update the definition of workplace harassment to include workplace sexual harassment (as defined in the OHSA)
- Confirm how incidents or complaints of harassment will be investigated and dealt with
- The procedure for reporting incidents to the worker's supervisor and to someone other than the complainant's manager or supervisor, if that person is the alleged harasser
- Confirm that information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary for the investigation or corrective action, or is required by law
- Set out a process for how the complainant and the alleged harasser (if this person is a worker) will be informed in writing of the investigation's results and any corrective action. It is important to note that this is not a report to be posted for purposes of s. 25 of the OHSA, meaning it does not have to be posted in the workplace.
As with the existing workplace violence and harassment policy requirements, the policy and program must be reviewed at least annually and employees must be trained on the new policy/procedure.
Performance Management is not Harassment
The Bill 132 amendments also revise the OHSA to include a provision that confirms that "a reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment" (emphasis added) (OHSA, s. 1(4)).
Although this may seem like an obvious conclusion, it is helpful to have this point codified in the OHSA, particularly in the face of these enhanced obligations to protect against and investigate workplace harassment, including sexual harassment and violence.
Review and Revise before September 2016
Although many employers are already following best practices and have implemented many elements of the legislation in their current workplace violence and harassment policies and procedures, it will be prudent for employers to review current policies and procedures for compliance with the Bill 132 amendments before September to avoid any administrative orders for non-compliance or other enforcement proceedings on behalf of the Ministry of Labour.
Similarly, given the enhanced obligations with respect to investigating and reporting on the findings of workplace harassment incidents and complaints, employers will want to ensure compliance to limit liability in any human rights or wrongful dismissal proceedings where harassment or sexual harassment are at issue.
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.