In our last post, we introduced Bill C65, which becomes effective January 1st for all federally regulated workplaces. As noted in that post, as part of this new legislation, all federally regulated employers will need to:
- Understand and indicate what workplace harassment and violence is
- Develop or revise your existing harassment and violence policy, including your response procedure (as outlined below)
- Assess the risk of harassment and violence in your workplace
- Provide training on your policy and procedure to your employees, as outlined below
As part of your overall harassment and violence program, it’s important to outline your response procedures (both informal and formal) as an employer. Overall, this procedure should include the following guidelines and details:
- Timeline for acknowledgement/response to anyone bringing matters forward, whether a formal complaint or otherwise (while legislation calls for 7 days, we recommend acknowledgement occurs much sooner)
- Outline of direct and informal steps that may be taken, as agreed with the person bringing the concern forward (e.g. coaching the complainant to address it directly, if they feel safe doing so)
- Subsequent formal steps that will be taken if, after reasonable and agreed-upon efforts, the issue can’t be resolved directly and/or informally; these should include options for conciliation or investigation
- Ideally, the first formal step (if both the complainant and respondent agree to it) is conciliation, where an appropriate third-party (e.g. HR, management, coach or consultant) meets with each person separately and then together, as a means of resolving the issue; alternatively, or if necessary (e.g. if conciliation isn’t an option or is unsuccessful), proceed with an investigation
- Nature of and steps involved in an investigation, along with qualifications of the investigator
If investigation becomes a required formal step, it’s important that it be led by someone who has experience/training in workplace investigations (specifically related to workplace harassment and violence) and who has knowledge of the Human Rights Code, relevant CLC legislation, and any other related legislation. Regardless of the investigator chosen, there should be no conflict of interest with either party. In most cases, investigators should not be the employer or a manager and, wherever possible, will be an impartial third-party.
Following a formal investigation, the investigator provides a report to the complainant, respondent, and the OH&S committee or representative (if applicable), outlining a general description of the issue (without identifying anyone involved); analysis and findings; and recommendations. From there, the employer determines necessary next steps to eliminate or minimize risk of reoccurrence, any corrective/disciplinary action, as well as ongoing support offered to the complainant.
Following development of your overall harassment and violence program, training to employees is required and should be developed in line with your workplace culture, overall policy and procedure, as well as the conditions and risks associated with your specific industry, work activities, customers and/or location. Training should include:
- In-depth review of your Workplace Harassment & Violence policy
- How that policy intersects and aligns with the prohibited grounds of discrimination outlined in the Canadian Human Rights Act
- How employees can/should recognize, minimize, prevent, and respond to harassment and violence in your workplace
- Psychological and other supports that are available to employees in your/their geographical areas (e.g. your EAP, benefits program, partner organizations (if applicable), list of social services, etc.)
Training should be provided to all existing employees as soon as possible upon development of your policy and, thereafter, to all new employees within 3 months of their start date. From there, as is the case for your program/policy overall, training content should be reviewed at least every 3 years and also carried out with all employees at least every 3 years.
The steps involved in developing a harassment and violence program are to develop/update your policy (which includes both procedures employees should follow, as well as how you’ll respond); conduct an associated workplace assessment; and conduct training with all employees. Finally, as also noted in our last post, while this legislation is only currently relevant under the CLC, provincially regulated workplaces may want to get on board now, to stay ahead of the curve.