As of January 1, 2021, federally regulated organizations became subject to the new workplace harassment and violence regulations created under the Canada Labour Code (See SOR/2020-130).
The Labour Program of Employment and Social Development Canada had been refining the new scheme for years after introducing Bill C-65. Previously, little was imposed on federally regulated employers in managing these workplace conflicts. That has changed. The new regulations are comprehensive and require various positive steps be taken, both in preventing workplace harassment and violence and in responding to incidents. Employers and their HR advisers have now had several months to digest the new scheme. Here are five important observations:
1. Complaints are managed on a step-by-step basis
The new regulations provide for a three-stage response to complaints. First, the employer must attempt a “negotiated resolution”. This would entail informal discussions between the employer and the complainant (and likely the respondent) to determine if the matter can be resolved without resorting to more formal procedures. A negotiated resolution should be reduced to writing and signed by all involved.
If an attempt at a negotiated resolution is unsuccessful, the employer must offer “conciliation” (a.k.a. “mediation”). Conciliation requires that a neutral third party attempt to find a mediated resolution. The complainant and respondent must agree on the person to conduct the conciliation.
If neither a negotiated resolution nor conciliation resolves the complaint, the employer must offer to investigate the complaint. It is important not to rush to investigation before attempting a negotiated resolution and offering conciliation. Note, also, that conciliation and negotiated resolutions can occur after an investigation has begun, as long as the investigator has not yet provided the investigation report.
The new regulations are comprehensive and require various positive steps be taken, both in preventing workplace harassment and violence and in responding to incidents.
2. The definition of harassment is vague
The definition of harassment is found in the Canada Labour Code proper. Section 122 provides that “harassment and violence means any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment”. There is no further clarity in the regulations.
Interestingly, the complaint resolution scheme does not provide a mechanism by which employers can decline to treat a complaint on the basis the conduct at the root of the complaint would not constitute harassment even if true. One might assume that employers have such an inherent ability; however, subsections 23(2) and (3) of the regulation provide that whether a complaint constitutes harassment or violence can be reviewed at the “negotiated resolution” stage, and if there is a “joint determination” that the complaint is not harassment, it can be considered resolved.
Given that this question is specifically addressed within the negotiated resolution provisions in this manner, an employee could argue that the employer cannot unilaterally take the position the complaint is not one of harassment. Judicial/arbitral interpretation would be welcome on this issue.
3. The complainant is in control
The regulation provides that the complainant may “end the resolution process at any time”. As investigations are part of the “resolution process”, employers do not seem to have the option of continuing with an investigation against a complainant’s wishes.
4. This regulation is all about collaboration
The new regulation requires federally regulated employers to consult with employees through workplace committees (or similar entities) and to jointly agree on several matters: the workplace assessment for harassment and violence hazards, the workplace harassment and violence policy, determining what training is necessary for employees and developing a list of potential investigators.
However, if the parties cannot agree on any of these matters, the regulation provides that the employer’s decision prevails. It would be wise for employers to enter into good faith discussions with their workplace committees about these matters prior to unilaterally imposing their will. The law requires no less.
5. Time is not of the essence (but should be)
A one-year time limit is imposed on employers with respect to ensuring the resolution process is completed for each complaint. The clock starts to tick on the date the employer receives notice of an incident.
Employers should not be fooled into thinking they can wait for up to a year to resolve a complaint of harassment or violence. These complaints should be taken seriously and dealt with expeditiously. Unresolved workplace conflict can fester and may escalate into something more serious, including liability for the employer. Furthermore, the earlier workplace conflict is managed, the more likely working relationships can be salvaged.
The foregoing is not intended to be a summary of the new regulation; rather, it highlights some interesting issues that have arisen since employers have started working with the new rules. For more information, please contact our Employment Law Group.
