Culture shift main way to eradicate workplace harassment: Lawyer

In developing a workplace strategy around harassment and violence, the federal government recently passed Bill C-65, an Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017.

“It’s really just making sure that employees have this added protection,” said Carla Oliver, an occupational health and safety and HR consultant at Fasken in Toronto.

“They’re making it more clear for employers… they’re trying to streamline it, and make sure employers understand their duties.”

When it comes to prevention, the new law will require mandatory training of federally regulated employers and employees, according to Lori Sterling, senior counsel at Bennett Jones in Ottawa.

“The main way in which we would eradicate harassment in the workplace is through culture change, and one of the key tools for culture change, apart from leadership signalling zero tolerance, is to ensure that there is training done at all levels of the organization,” she said.

“It specifically says now that a person designated by the employer to receive complaints also has to have knowledge and training and experience.”

The training is meant to ensure employees understand there is a policy, there are requirements for reporting, and there are requirements for employers to do an investigation, said Oliver.

“It’s really (about) getting that communication to employees to understand ‘This is what our policy is and this is what we’re expecting you to do, and this is what the employer will be doing’ — so it sets it all out.”

The new law will not just apply to employees but interns and volunteers — and former employees, in some cases. That part is fairly novel, said Sterling.

“You can imagine a situation where there’s been such horrific conduct that an employee has left but, at the same time, you want whoever that engaged in the harassment to be dealt with. And under the old regime, the employee that left would have had no rights.”

Provincially, it’s usually about “in and out of the course of employment,” so this is a bit different, though it’s limited to three months after the employee leaves, said Oliver.

“You don’t want anybody leaving because they felt harassed or there was an act of violence, because that could occur to some other employee, so an employer should want to know so they can investigate and make sure there’s nothing going on.”

The new law, which has received royal assent but is not yet in force, will also require employers to respond even if there is no formal complaint of harassment or violence.

“The idea is that the employee would have a duty to report if they witness it or they experience it, and then they have a duty to tell the employer that then triggers the end duty to begin an investigation,” said Oliver.

“A lot of times, you might overhear or walk by a conversation and you catch snippets and maybe you guess somebody is being harassed, but that really doesn’t trigger that duty — it’s more specific.”

Employees who have reasonable grounds to believe there’s been a violation should speak to a supervisor or, if the supervisor’s not appropriate, a person designated by the employer, said Sterling.

“That’s largely to deal with a situation where either the supervisor is the alleged harasser, or it’s a small work environment and they want to get some distance between the supervisor; for example, a mom and pop shop.”

If the parties are unable to resolve matters informally, a complaint can be filed, which then entitles the complainant to an investigation by a “competent person,” who is jointly selected by the employer and employee, she said.

“Initially, people try to resolve this in an informal way, but if that is not successful, then there’s a right to a formal investigation and what’s novel in this legislation is that in that formal investigation, the investigator is a joint determination by the employer and the employee.”

A lot of times, there are policies and procedures in place, but employees aren’t sure who to talk to, especially if the harasser is a supervisor. That’s why a competent person makes sense, said Oliver, meaning someone “having the knowledge, understanding, skills to be able to handle these types of complaints… there has to be some level of competency.”

And while occupational health and safety committees review the policies, Bill C-65 says they are no longer directly involved in the investigation of a specific complaint unless the employee consents, said Sterling.

When the federal government did its consultation, it found many people who experienced harassment didn’t come forward because of concerns about privacy, or skepticism about whether things would really change, she said.

“To deal with the concerns around privacy, there is a role for the health and safety policy committee in setting the policy of the employer, but with respect to individual complaints, they’re no longer part of the complaint unless the complainant consents… some complainants may not want others to know.”

Originally posted on by Sarah Dobson on December 12, 2018