The Ontario Ministry of Labour has now issued a Code of Practice containing direction with respect to its expectations for the implementation of Bill 132, which amends the workplace harassment provisions of the Occupational Health & Safety Act (“OHSA”). However, a few remaining “grey areas” are bound to cause headaches for employers when the changes come into effect September 8, 2016. For a discussion of the changes themselves, you may want to review my earlier blog on Bill 132.
The Code of Practice will be very helpful to employers who need specific resources – for example, it contains templates for a workplace harassment policy and a program, as well as a guideline for an investigation report. But there is a marked lack of definitive direction on a couple of critical aspects related to an employer’s obligation to conduct an investigation into allegations of workplace harassment.
The legislation requires that “an employer shall ensure that (a) an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances.” However, there is no definition of what constitutes an “incident”. While some “incidents” will be obvious, others may not be. For example, how many levels of hearsay remove an allegation from serious consideration? Does hearing an employee allege that “Joe told me that Mary saw Kathy threaten Andrew” constitute an “incident”?
In addition, we still don’t know what will constitute “an investigation … appropriate in the circumstances”. Presumably an allegation of a minor contravention will not require a full-blown external investigation, but we won’t know exactly where the lines are until we start to see case law from the Ontario Labour Relations Board.
We do know that the investigator, whether internal (a supervisor, manager, human resources professional) or an external investigator, are expected to:
- Maintain confidentiality except to the extent necessary to conduct the investigation.
- Thoroughly interview the complainant and the alleged harasser if the alleged harasser is an employee. If the alleged harasser is not an employee, the employer must make reasonable efforts to interview him/her.
- Separately interview any other witnesses with relevant information.
- Collect and review relevant documents.
- Take notes and statements during interviews.
- Prepare a written report.
The employer must communicate the results of the investigation and any corrective action taken to the complainant and the alleged harasser, if the alleged harasser is an employee. This doesn’t mean that the entire investigation report must be provided, however.
If you have not already done so, employers should be reviewing their existing workplace violence and harassment policy and program to ensure compliance with the new legislation. And of course, if Siskinds’ Labour and Employment Group can be of assistance, don’t hesitate to call us!