On September 8, 2016, Bill 132, An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters will come into effect. As the Act’s title suggests, it will amend a number of different pieces of legislation including, most importantly for most employers, the Occupational Health and Safety Act (OHSA). The changes actually go beyond sexual violence and harassment, extending to how workplace harassment is to be dealt with in the workplace. Here is a guide to the changes.
Definitions have been added to the OHSA for workplace harassment and workplace sexual harassment.
An important clarification, particularly for employers, has been added with regards to workplace harassment, with addition of the wording that “A reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.” This was added as a result of employee allegations of harassment when they received poor performance evaluations or discipline.
A written program is required with regards to the implement of the workplace harassment policy. This policy is to be arrived at in consultation with the Joint Occupational Health and Safety Committee or Health and Safety representative. This program is to include:
- A process for reporting incidents of workplace harassment to a person other than the employer or supervisor if the employer or supervisor is the alleged harasser;
- How incidents or complaints of harassment will be investigated and dealt with;
- How information obtained regarding an incident or complaint of workplace harassment is to be dealt with;
- How a worker alleging workplace harassment and the alleged harasser will get the results of the investigation and of any corrective action to be taken.
- An annual review of the program.
It should be noted that information gathered as part of an investigation is exempt from the requirement of Section 25 of the OHSA to report information to the Joint Occupational Health and Safety Committee or Health and Safety representative.
Inspector Can Order
An Occupational Health and Safety Inspector can order the conducting of an investigation of alleged workplace harassment by a third-party person.
What Bill 132 means to most employers is that it needs to amend its existing Violence in the Workplace and Harassment in the Workplace policies, established as the result of the previous Bill 168. This includes clarification about how investigations will be conducted.
Investigations can, of course, be conducted internally, if appropriate. The appropriateness of an internal investigation can be determined based on who the allegation is against, the availability of existing staff trained in conducting such an investigation, and the potential internal fall out of the investigation, regardless of the result.
It is important that any investigation be conducted correctly, particularly as it is now required under legislation. Staff not familiar with how to conduct such investigations may make process and procedure errors that could make situations worse, or invalidate the process. Even when qualified staff do investigations, doing them when related to peer or higher-level staff may place the investigator in an awkward internal situation. Investigations conducted internally may, of course, be perceived as somehow tainted, even when they are not. Remember, in many situations, the investigation involves dealing with ‘sides’ of an argument and staff often ally themselves with one side or the other.
One way of dealing with investigations is to include in the Bill 132 revisions you are already doing the requirement or option for an external investigation by a qualified outside individual.
JM Box Consulting Services is not only in a position to offer such external investigation services; it can do so in a unique format.
As an experienced and trained investigator, I have found that investigations, given their formal and legalistic format, often can cause further disruption in the workplace, including the continuation of the root issues without resolution. Remember, the purpose of the investigation is to determine the facts and, if appropriate, identify the harasser. Unless part of the investigation, it does not require the identification of causes or ways to deal with them. Additionally, the time it takes to do an investigation, even when appropriate measures are taken with regards to the safety of the potential participants, allows for the issue to remain ‘out there’ in the organization.
Bill 132 calls for investigations to be conducted into incidents of workplace harassment “that is appropriate in the circumstances”. Why is the latter section important? In some cases, the issue is not harassment in the true legal sense, but misunderstandings, feelings, and perceptions. Will a formal investigation truly deal with these concerns?
I am fortunate that I am not only a trained investigator, but also a trained and certified Mediator. This allows me to offer a somewhat unique approach to workplace harassment situations. I therefore can offer clients a different approach:
Phase 1- preliminary investigation of the situation to determine how serious it is, and to recommend to the client an appropriate approach.
Phase 2a)– if warranted, a full investigation of the situation, including a final report on the issues and background causes, as well as recommendations.
Phase 2b)– if warranted, and agreed to by all parties, use of mediation to resolve the issues.
In most cases, the difference between Phase 2a) and Phase 2b) would be the seriousness of the incident in question, and wether or not the employer may need to impose discipline. Issues that could result in discipline would usually be in the Phase 2a) category.
To reduce costs and speed up the process, wherever possible and appropriate, Skype or similar could be used in the investigation or mediation process.
Bill 132 will lead to a more formalized process when it comes to the investigation of workplace harassment allegations. If you have any questions, comments or concerns related to Bill 132, require assistance on revising your policies or would like to inquire into our investigation/mediation services, please do not hesitate to contact me at:
firstname.lastname@example.org or 519-903-5634