It has been six years since Bill 168 amended Ontario’s Occupational Health & Safety Act to require employers to take steps to prevent and to deal with bullying and harassment in the workplace. Since that time, we have come to realize that there were gaps – some would say flaws – in the legislation which reduced its impact. Those gaps are now being addressed by Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment) 2016.[1]
What were the gaps?
Legal Obligation to Protect
Bill 168 imposed no specific obligation on employers to protect employees from harassment and violence in the workplace.
Sexual Harassment or Violence
Bill 168 did not specifically include sexual harassment or violence.
Investigations
Bill 168 did not require employers to conduct investigations.
Remedies
While Bill 168 clearly required employers to develop, implement and train employees on policies and programs to deal with workplace harassment and violence, there was no authority given to the Ontario Labour Relations Board to enforce a remedy in the event harassment or violence occurred.
How are the gaps being filled?
The definition of workplace harassment has been amended to specifically include workplace sexual harassment, which is defined as:
(a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or
(b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation oradvance is unwelcome.
The remainder of Bill 132’s amendments to the OHSA related to all types of harassment. When the amendments come into effect on September 8, 2016, employers will be required to:
- protect their employees from workplace harassment
- together with the joint health and safety committee (or the health and safety representative) develop and maintain a written program to implement the harassment policy, which must include:
– information about reporting harassment to individuals other than the alleged harasser, if the harasser is the employer or a supervisor;
– a stipulation that information about an incident or complaint will not be disclosed unless necessary for the purposes of the investigation or as required by law;
– confirmation that both the alleged victim and the alleged perpetrator will be informed in writing of the results of the investigation and any corrective action taken.
- review the program annually
- undertake an investigation into a complaint of workplace harassment that is “appropriate in the circumstances”. Inspectors will have authority to order a third party investigation if deemed necessary. Note that employers have an obligation to investigate even where the alleged victim does not wish to pursue the matter.
The government has indicated that it will issue a Code of Practice in July 2016 and we anticipate that this document should provide employers with some assistance in determining how to comply with these new obligations. Compliance will be important, as the Ministry has hired 12 new inspectors who will receive specific training on dealing with workplace harassment complaints.
Keep in mind that occupational health and safety legislation is quasi-criminal in nature and that penalties imposed by the Court can be substantial. Individuals can be fined up to $25,000 and/or be imprisoned for up to 12 months. Corporations can be fined up to $500,000.
Finally, on a positive note, Bill 132 includes one additional provision which codifies existing case law and which should please employers:
A reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.
[1] Bill 132 affects a number of statutes, however we will address only the amendments to the OHSA.