Risk management savvy employers are preparing for the mandatory harassment investigations that the Ontario Government intends to impose on all Ontario employers. If an employer fails to comply with the new investigation requirements, penalties include: (i) orders requiring the employer to retain an outside, third party investigator; (ii) prosecutions of up to $500,000 per count; and (iii) personal liability for officers and directors.
The New Harassment Requirements
The Ontario Government recently introduced Bill 132[1], which proposes amendments to the Occupational Health and Safety Act (“OHSA”) that would create expanded employer obligations concerning workplace harassment and the investigation of incidents and complaints.
The proposed changes to the OHSA include the following requirements:
- Employers must conduct investigations into workplace harassment “incidents and complaints”.
- Note: The obligation to conduct an investigation is triggered by an “incident”, even if there is no formal complaint.
- Both the alleged victim and the alleged harasser (if an employee) are to be informed in writing of the results of the investigation and any “corrective action” that has or will be taken as a result of the investigation.
- Employers must ensure that the employer’s harassment prevention program:
- addresses how a worker can complain about their supervisor;
- sets out how incidents and complaints will be investigated and dealt with; and
- addresses confidentiality.
Further, Ministry of Labour inspectors will be able to order an employer to retain a third party investigator (at the employer’s expense) to conduct an investigation. That outside investigator is to be “impartial” and possess “such knowledge, experience or qualifications” as specified by the inspector.
Safe Harbour for “Reasonable” Management Directives
The proposed amendments will also make it clear that a “reasonable action taken by the employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment”. This “safe harbour” is important because of the broad definition of workplace harassment, which might otherwise capture standard performance improvement techniques. Under the OHSA, workplace harassment includes “engaging in a course of vexatious comment or conduct” that is known or ought to reasonably be known to be unwelcome.
Why is this a Risk Management Issue?
Prudent employers have used solid investigation practices to investigate allegations and incidents and achieve compliance with current legislation requirements, but the changes proposed by Bill 132 represent quantitatively different risk management concerns because:
- Investigations into workplace harassment incidents or complaints need to be “appropriate in the circumstances”. This exposes businesses to at least four new areas of litigation exposure:
a. the decision making process relating to the type of investigation to be conducted;
b. the selection of the investigator;
c. the investigation process, including timing, methodology and the scope of questioning; and
d. the degree to which the actual investigation differs from the procedures set out in the company policy dealing with investigations.
- The Ministry of Labour inspectors will have the power to order the employer to retain an outside, third party investigator.
- The existing Directors and Officers liability section will engage these changes so that the Board of Directors and Officers will have to take all reasonable care to ensure that the corporate employer:
a. has the required program, policies and training in place;
b. revises the anti-harassment program at least annually to ensure that it adequately implements the policy;
c. follows the new harassment investigation requirements.
When Will These Changes Become Law?
The amendments to the OHSA will come into force on either July 1, 2016 or six months after Bill 132 receives Royal Assent, whichever is later. Thus, employers will have six months to achieve compliance with the new requirements. Bill 132, which was tabled in October 2015, passed second reading on December 9, 2015 and has been referred to the Standing Committee on Social Policy.
These changes are part of the Ontario Government’s three-year action plan entitled “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment”, which is currently a government priority. Implementation of other aspects of the action plan and its commitments has already begun. We will post an update on the Bill’s progress in the New Year.
The full text of Bill 132 can be found here.
[1] The Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015, first reading October 27, 2015.