Part 2 of 2: Less than 2 months for employers to prepare for the new Federal Regulations on Workplace Harassment and Violence – Changes effective January 1, 2021
As explained in Part 1 of this series, the federal government’s new Workplace Harassment and Violence Prevention Regulations (the Regulations) will come into force January 1, 2021, along with Bill C-65, the federal anti-harassment and violence legislation.
In this final article of a two-part series on the Regulations, we outline some of the key requirements of initiating, resolving and investigating harassment and violence in the workplace and we also review the requirements regarding record keeping and annual reporting to the Minister of Labour.
Prior to the enactment of Bill C-65 and the Regulations, there was no express statutory duty imposed upon federally regulated employers to investigate workplace harassment – only violence. With the inclusion of the duty to investigate workplace harassment comes greater protection for employees as seen by the complainant’s ability to maintain agency and control during the resolution process, the high threshold of competence that is required for an investigator to review a complaint and the employer’s accountability in preventing and resolving incidents of workplace harassment and violence.
Initiating a complaint and the resolution process
The Regulations provide employers with a detailed process for resolving complaints of workplace harassment and violence. This is one notable difference between the federal workplace harassment and violence regime and similar provincial requirements; the Regulations include more detailed requirements for responding to and resolving occurrences of workplace harassment and violence.
Part 1: Initiation of a complaint
To initiate the complaint process, a witness or the “principal party” (i.e., the complainant) must provide notice of workplace harassment or violence to the employer or work unit designated by the employer to whom a notice of harassment or violence may be provided (referred to in the Regulations as a “designated recipient”). The notice must include names of the principal party and “responding party” (i.e. the person who is alleged to have been responsible for the occurrence of workplace violence or harassment), if known, the date of the occurrence and a detailed description of the occurrence.
Exceptions to notice requirements
Note that the Regulations contain exceptions to the above rule regarding notice. Notice of workplace harassment or violence must not be provided if: the principal party or the responding party is neither the employer or the employee; exposure to harassment and violence is a normal condition of the principal party’s work; and the employer has measures in place to address that workplace harassment and violence.
Part 2: Mandatory resolution before investigation
Unlike many of the provincial regimes in place, the federal regime contemplates mandatory resolution prior to any workplace investigation being undertaken. Interestingly, there is no express prohibition against using the mandatory resolution process as supporting evidence in the investigative process.
Once notice of workplace harassment or violence is provided to the employer or designated recipient, the employer or designated recipient must provide monthly updates of the status of the resolution process to the principal party (beginning on the first month after the month in which the notice is provided) and to the responding party (beginning on the first month in which the responding party is first contacted with respect to the notice and ending for both parties on the month in which the resolution process is completed).
Principal party retains ability to terminate the process
However, pursuant to the Regulations, the principal party has the choice of “ending the resolution process”, potentially including a workplace investigation, at “any time” – this is also different from the provincial regimes, which leave employees with virtually no control over the process after the point where they file a complaint.
Reasonable efforts to resolve
Also in contrast to the provincial regimes, pursuant to the Regulations, the employer or designated recipient, the principal party and, if contacted, the responding party must make reasonable efforts to resolve the complaint, and such efforts must begin no later than 45 days after the day on which the notice of the occurrence is provided. The Regulations also expressly provide that a complaint can be simply resolved by either:
- resolution between the employer or designated recipient and the principal and responding parties including a joint determination by the principal party and the employer (or designated recipient) that the notice of occurrence does not constitute harassment and violence under the legislation; or
- conciliation, where the principal party and responding party agree to it and on a person to facilitate it.
Note that, according to the Regulations, resolution of the complaint can only occur prior to the investigator’s report being provided.
Part 3: Investigations – Where the complaint is not resolved
If resolution is not reached among the parties, then the investigation must be carried out if the principal party requests it.
Selecting an investigator
If an investigation is carried out, the employer or the designated recipient must provide notice of the investigation to the principal party and responding party. The Regulations contain specific requirements for selecting the investigator and the investigator must be trained in investigative techniques, have knowledge, training and experience that is relevant to harassment and violence in the workplace and of relevant legislation. The employer can, together with the “applicable partner” (i.e., the employer’s policy health and safety committee or, if no such committee exists, the workplace health and safety committee or health and safety representative, as applicable), develop a list of potential investigators in advance; however, if no such list has been developed in advance, the employer or designated recipient, principal party and responding party must agree on an investigator.
Investigator’s final report
Upon completion of the investigation, the investigator must provide the employer with a final report that includes:
- a general description of the occurrence, their conclusions, including those related to the circumstances in the workplace that contributed to the occurrence; and
- the investigator’s recommendations to eliminate or minimize the risk of a similar occurrence.
Employer must provide copy of report
The employer is required to provide a copy of the report to each of the parties, the workplace committee or health and safety representative and if applicable the designated recipient. The employer must then determine, together with the workplace health and safety committee or health and safety representative, as applicable, which of the recommendations set out in the report are to be implemented.
Record keeping requirements
Employers must keep certain health and safety records listed in the Regulations, including:
- copies of the workplace harassment and violence prevention policy;
- records of any workplace assessment conducted pursuant to the Regulations; and
- a record of each notice of workplace harassment and violence and each action taken in response to the notice, for a period of ten years.
By March 1 of every year, employers must provide the federal Minister of Labour with an annual report that sets out reported occurrences of harassment and violence in the workplace. The details of such reports are specified in the Regulations and requires:
- the employer’s name or business name;
- the employer’s business number, as defined in subsection 248(1) of the Income Tax Act;
- a contact person in respect of the annual report; and
- the following information respecting the occurrences of workplace harassment and violence for which notice was provided under the Regulations in the preceding calendar year:
- the total number of occurrences;
- the number of occurrences that were related, respectively, to sexual harassment and violence and non-sexual harassment and violence;
- the number of occurrences that resulted in the death of an employee;
- if known, the number of occurrences that fell under each prohibited ground of discrimination set out in subsection 3(1) of the Canadian Human Rights Act;
- the locations where the occurrences took place, specifying the total number of occurrences that took place in each location;
- the types of professional relationships that existed between the principal and responding parties, specifying the total number for each type;
- the means by which resolution processes were completed and, for each of those means, the number of occurrences involved; and
- the average time, expressed in months, that it took to complete the resolution process for an occurrence.
In addition, if workplace violence or harassment results in the death of an employee then the employer must report the occurrence to the federal Minister of Labour within 24 hours after becoming aware of the employee’s death and include the information specified in the Regulations.
To better prepare for when the Regulations come into force, employers could consider (in consultation with their applicable partner, where necessary):
- having a designated recipient as a neutral party to liaise between the employer and the involved parties;
- establishing a process for resolving complaints of workplace harassment and violence beginning with explaining how to provide notice of an occurrence and ending with resources explaining conciliation and a list of reputable facilitators;
- developing a list of potential investigators; and
- developing record keeping and reporting protocols in compliance with the Regulations.
Osler’s Employment and Labour Group can assist employers in updating their processes and policies to ensure compliance with Bill C-65 and the Regulations.