Navigating the complexities of workplace harassment is a challenging process for employers. It often requires the allocation of considerable time and resources to investigate complaints and has the potential to result in significant costs to an organization if it is required to defend its actions or response to litigation.
With the changes to the Occupational Health & Safety Act (OHSA) under Bill 132 that come into effect on September 8, 2016, workplace harassment will continue to be a top priority for employers.
What has changed with Bill 132?
- As we have outlined in a previous post, Bill 132 expands the definition of workplace harassment under the OHSA to specifically include workplace sexual harassment as a workplace safety issue.
- It also creates an obligation on employers to take a more proactive approach to addressing workplace harassment through clearly defined complaint mechanisms, written procedures outlining the investigation and reporting process as well as various training obligations.
Top 5 Things for Employers to Address Before September 8, 2016:
- Review and update policies on workplace violence and harassment to ensure that the definition of workplace sexual harassment is specifically addressed.
- Ensure there are clearly defined mechanisms for making a complaint:
- Employees must have the ability to report an allegation of workplace harassment to someone other than their supervisor or manager in the event he/she is involved in the complaint.
- Develop a consistent process and procedure to investigate complaints and report the results:
- Under Bill 132, employers have an obligation to investigate complaints in a “manner appropriate in the circumstances”. From an HR best practices standpoint, while there is no clear definition of what is considered appropriate, employers should have a consistent practice in place and ensure managers and individuals who may be required to investigate an allegation of workplace harassment (including sexual harassment) are trained in their obligations and how to respond to a complaint.
- Employers are also required to provide written results of the investigation and any corrective measures that may be taken to the complainant and the alleged harasser. As harassment investigations typically involve sensitive information, maintaining confidentiality is critical to the integrity of the process. With these new reporting requirements, employers must find a balance between these privacy concerns and the obligation to provide the required information.
- Emphasize the importance of taking complaints seriously:
- Bill 132 provides the Ministry with the ability to order employers to engage a third party to investigate complaints of workplace harassment, a cost which will be borne solely by the employer. In order to mitigate this risk, it is important to ensure that incidents and complaints are taken seriously and all actions taken by the employer to investigate the complaint are well documented.
- Create a plan to train all employees and managers on workplace violence and harassment and ensure the policy is reviewed at least annually.
Stay tuned for upcoming information about McCarthy Tetrault’s innovative solution to help ensure your organization is compliant with the changes to workplace violence and harassment requirements under OHSA, including training requirements. In the interim, if you have any questions about these changes or your obligations under Bill 132, please contact any member of our Labour & Employment team.