In a previous Focus Alert, we discussed the provisions of Bill C-65, An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1 (the “Act”). Readers will recall that one of the primary purposes of Bill C-65 was to expand employer obligations under Part II (Occupational Health and Safety) of the Canada Labour Code (the “Code”) to prevent and protect against workplace harassment and violence, respond to occurrences of harassment and violence, provide support to employees affected by harassment and violence, and investigate, record and report occurrences of workplace harassment and violence.
On June 17, 2020 the Work Place Harassment and Violence Prevention Regulations (the “Regulations”), a new standalone regulation which replaces Part XX (Violence Prevention in the Workplace) of the Canada Occupational Health and Safety Regulations and amends other existing health and safety regulations, was published in the Canada Gazette. Although the Regulations will not come into effect until January 1, 2021, they are being published approximately six (6) months ahead of time in order to give employers who continue to deal with the consequences of the COVID-19 pandemic the ability to continue focusing on the specific needs of their workplaces while nonetheless having sufficient time to prepare for the coming changes.
Joint Action by Employer and Applicable Partner
The Regulations call for a great deal of employer cooperation with an “applicable partner,” defined as the policy committee or, if there is no policy committee, the workplace committee or the health and safety representative.
The employer and the applicable partner shall jointly:
- Carry out a workplace assessment which identifies risk factors both internal and external to the workplace that contribute to harassment and violence in the workplace, taking into account:
- The culture, conditions, activities and organizational structure of the workplace;
- The circumstances external to the workplace, such as family violence, that could give rise to harassment and violence in the workplace;
- Any reports, records and data that are related to harassment and violence in the workplace;
- The physical design of the workplace; and
- The measures that are in place to protect psychological heath and safety in the workplace.
Development and Implementation of Preventive Measures
- Within six (6) months of the workplace assessment/identification of risk factors, develop preventative measures that, to the extent feasible, mitigate the risk of harassment and violence in the workplace and neither create nor increase the risk of harassment and violence in the workplace, as well as develop an implementation plan for the preventative measures and implement the preventative measures in accordance with the implementation plan;
- Monitor the accuracy of the workplace assessment and, if necessary, update it to reflect any change to the information set out in the assessment, including with respect to the identified risk factors or the effectiveness of a preventive measure; and
- Review the workplace assessment every three years, or where there has been a notification of an occurrence but the occurrence cannot be resolved by way of negotiated resolution and the principal party ends the resolution process or where the responding party is not an employee or the employer, and update, if necessary. Where the review process follows notification of one or more occurrences involving substantially the same matters, the review process must take into account the circumstances of the occurrence(s).
Workplace Harassment and Violence Prevention Policy
- Develop a workplace harassment and violence prevention policy containing specific elements required by the Regulations, and make that policy available to all employees; and
- Review the policy once every three years or if there is a change to any element of the policy, and update, if necessary.
- Develop emergency procedures to be implemented in the event of an occurrence or threat of an occurrence which poses an immediate danger to the health and safety of an employee, and make those procedures available to all employees; and
- Review the emergency procedures after every implementation of the emergency procedures and update, if necessary.
- Develop or identify workplace harassment and violence training that is to be provided to employees, the employer, and the person designated by the employer to receive notifications of occurrences of workplace harassment or violence (the “designated recipient”); and
- Review and, if necessary, update the training at least every three years and following any change to an element of the training.
Despite the requirement for cooperation between the employer and the applicable partner, the Regulations do provide that in the event that the employer and the applicable partner are unable to agree with respect to any joint matter, the employer’s decision will ultimately prevail.
Under the Regulations, workplace harassment and violence prevention training is required to be specific to the workplace’s culture, conditions, and activities. The training has to include the following subjects:
- The elements of the workplace harassment and violence prevention policy;
- The relationship between workplace harassment and violence and the prohibited grounds of discrimination in the Canadian Human Rights Act; and
- How to recognize, minimize, prevent and respond to workplace harassment and violence.
Employers will be required to ensure that employees hired after January 1, 2021 receive initial workplace and violence prevention training within three months after the day on which they begin their employment and that all employees hired prior to that date receive initial training within one year after the date of the coming into force of the Regulations. Employers will be required to undergo training themselves within one year of the coming into force of the Regulations, and to ensure that the designated recipient receives training before assuming their duties under the Regulations. The employer, its designated recipient, and its employees will also be required receive training once every three years thereafter.
In addition to the ordinary training obligations contained in the Regulations, supplementary training will also have to be provided to employees if there is an update to the training or if an employee is given a new role or activity for which there is an increased or specific risk of workplace harassment or violence.
The employer must ensure that employees have available to them information regarding medical, psychological or other support services available in their geographical area.
The employer or the designated recipient can be notified of an occurrence of workplace harassment or violence by a principal party (an employee or employer who is the object of an occurrence) or a witness. Notification must, however, not be made if:
- The responding party (being the person identified as having been responsible for the occurrence) is neither the employer or an 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.
The notification of an occurrence can be made to the employer or the designated recipient either orally or in writing, but must minimally contain the following information:
- The name of the principal party and the responding party, if known;
- The date of the occurrence; and
- A detailed description of the occurrence.
The reporting witness may remain anonymous but the principal party must be identified. In the result, if the principal party is making the notification themselves, they are not permitted to remain anonymous.
Upon receipt of every notification of an occurrence, the employer or the designated recipient must conduct an initial review. If, during the initial review process, the name or identity of the principal party is not disclosed and cannot otherwise be determined, then the occurrence is deemed to be resolved.
In all other cases, the employer or the designated recipient must, within seven days after the day on which notice of an occurrence is provided, contact both the principal party and the responding party in response to the notice. The employer or the designated recipient must inform the principal party and the responding party:
- That their notice has been received or that they have been named or otherwise identified as a party in the notice of occurrence;
- Of the manner in which the workplace harassment and violence prevention policy is accessed;
- Of each step of the resolution process; and
- That they may be represented during the resolution process.
If the notice of occurrence came from a witness, the employer or designated recipient must also, within seven days after the day on which notice of an occurrence is provided, contact the witness to confirm that their notice has been received.
The employer or designated recipient must make every reasonable effort to resolve the occurrence by way of negotiated resolution beginning no later than 45 days after the day on which notice is provided. However, if the occurrence is also investigated (as will be detailed below), it can no longer be resolved under the negotiated resolution section of the Regulations after the investigator has provided their report.
If the occurrence is not resolved by way of negotiated resolution, the principal party and the responding party can agree to proceed with the resolution process by means of conciliation. Again, however, if the occurrence is also investigated (as will be detailed below), it can no longer be resolved under the conciliation section of the Regulations after the investigator has provided their report.
The principal and responding parties must agree both on the process of conciliation, as well as on the facilitator. If the conciliation is unsuccessful or cannot proceed and the principal party so requests, then an investigation of the occurrence must subsequently take place.
Investigation and Confidentiality
Where the employer and the applicable partner have jointly developed or identified a list of persons who may act as an investigator, the employer or the designated recipient must select an investigator from that list. Otherwise, the employer or the designated recipient, the principal party and the responding party must agree to an investigator who meets the particular qualifications outlined in the Regulations or, if there is no agreement within 60 days, the employer or designated recipient must select a person from among those whom the Canadian Centre for Occupational Health and Safety identifies as having the particular qualifications outlined in the Regulations.
The investigator’s report must contain a general description of the occurrence, their conclusions including those related to the circumstances in the workplace that contributed to the occurrence, and their recommendations regarding eliminating or minimizing the risk of a similar occurrence. The report must be provided to the employer, who must then ensure that the principal party, the responding party and the workplace committee or health and safety representative and, if applicable, the designated recipient, all obtain copies as well. The investigator’s report cannot reveal, directly or indirectly, the identity of persons who are involved in an occurrence or the resolution process for an occurrence.
Upon receipt of the report, the employer and applicable partner (the workplace committee or the health and safety representative, as applicable) must jointly determine which recommendations contained within it are to be implemented, and the employer must then implement them.
Timelines for Completion of the Resolution Process
The employer or designated recipient is required to provide monthly updates to the principal and responding parties regarding the status of the resolution process.
The resolution process is completed when:
- If a workplace assessment is required, the review and, if necessary, update of the assessment are carried out;
- The occurrence is deemed resolved at the initial review stage, or is resolved by way of negotiated resolution or conciliation; or
- the matter is investigated, the investigator has provided the report, and the employer has implemented the recommendations that it has jointly determined with its applicable partner.
The principal party can, at any time, request that the resolution process be terminated. However, in such cases, the principal party’s election triggers a requirement on the employer’s part to review and/or update the workplace assessment so the resolution process is only deemed completed once that process is carried out as well.
An employer must ensure that the resolution process is completed in its entirety within one year after the day on which notice of the occurrence was provided. In the event that either the principal party or the responding party is temporarily absent from the workplace for more than 90 consecutive days during the investigation process, that timeline can be extended by up to six months after the day on which the absent party returns to work.
The Act indicates that the employer’s obligations apply to former employees regarding occurrences that become known to the employer within three months after the day on which the former employee ceased to be employed by the employer. However, the Minister can extend that period if the former employee can demonstrate to the Minister that they were not able to make the occurrence known to the employer within three months because they incurred trauma as a result of the occurrence, or because of a health condition.
Former employees may make a complaint to their supervisor or the designated recipient up until the later of three months after the day on which the former employee ceases to be employed by the employer, or, if someone notified the employer or designated recipient of the occurrence, three months after the day on which the resolution process is completed in respect of the occurrence.
The Regulations outline particular requirements about health and safety records, which are required to be kept for ten years. Employers are required to provide annual reports to the Minister regarding occurrences of harassment and violence, as well as fatality reports resulting from occurrences of harassment and violence within 24 hours of being notified of an occurrence resulting in an employee’s death.
In Our View
The Act and the Regulations impose greater obligations on employers with respect to preventing and addressing workplace harassment and violence. Employers will be required to work very closely with their applicable partner on many aspects of their harassment and violence obligations.