By Ashley Latal
Significant changes to the Ontario Occupational Health and Safety Act come into effect on September 8, 2016 regarding workplace sexual harassment and workplace investigations. The following is a checklist aimed at assisting employers in implementing the requisite changes pursuant to Bill 132.
1. Include a definition of “workplace sexual harassment” in policy.
Workplace harassment under the OHSA will now include “workplace sexual harassment”, as defined in Bill 132. This language should be included in your harassment policy.
Employers may also want to consider adding that reasonable management or supervisory actions do not constitute workplace harassment, as that issue will now be specifically addressed in the OHSA.
2. Set out complaint/investigation process where alleged harasser is supervisor/employer.
If your policy does not cover this issue already, you will need to determine appropriate reporting measures and procedures for situations in which the alleged harasser is a supervisor or employer. This ought to include to whom employees are to raise such complaints and the procedures for dealing with and investigating such complaints. If there is no appropriate internal person to handle such complaints, the investigation may need to be handled by an external investigator.
Some organizations have policies that state that a supervisor is to investigate complaints. An appropriate caveat should be added to such policies providing another avenue for investigation of complaints where the supervisor is the alleged wrongdoer.
3. Set out necessary confidentiality provisions.
Policies will now have to specifically address confidentiality around incidents and complaints of harassment. Bill 132 requires that policies set out measures to ensure that “ information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved: is not disclosed, unless necessary to an investigation or taking corrective action, or is required by law.
Those handling the complaints will need to understand the confidentiality restrictions, including what information may be disclosed and to whom it may be disclosed.
4. Set out that the parties will be informed of the results and corrective action.
Employers need to now inform parties in writing as to the results of an investigation, as well as “any corrective action” resulting from the investigation. The extent of the information that must be disclosed is not clear from the language of the amendments. However, in most circumstances, it will likely be unnecessary to disclose more than a summary of the findings (whether substantiated or not) and if corrective action will be taken. Whether or not the precise corrective action to be taken is not spelled out in Bill 132. However, for purposes of confidentiality and protecting ongoing relationships and reputations, in most circumstances it is likely best to disclose only the fact that corrective action will be taken without specifics. This determination should be made in consultation with your legal counsel.
5. Consider requirement of “appropriate investigation”, possible MOL involvement, and where external investigator might be required.
Portions of Bill 132 appear to be aimed at encouraging employers to take their obligation to investigate complaints more seriously. It will be helpful for employers to reflect this in their policies. The Ministry of Labour will have authority to order employers to retain external independent investigators. Employers should consider utilizing external investigators in appropriate circumstances, including where there may be a perception of bias if an internal investigator were to be appointed (e.g., where more serious allegations are raised or where a manager or supervisor is accused of wrongdoing).
A trained internal investigator who will be perceived as unbiased may also be appropriate in the right circumstances so long as they are unbiased (and will be perceived as unbiased) and are appropriately qualified and trained to conduct workplace investigations.
6. Conduct an annual review.
Your harassment program must be reviewed annually.
7. Conduct training on updated policy.
To ensure management and employees are informed about the new changes, employers should provide training on their harassment program to all employees.
- Requisite changes to policies and procedures should be made soon and by no later than September 8, 2016.
- It is not yet clear what the practical difference of “workplace sexual harassment” will be but inclusion of this additional definition may help to ensure more thorough investigations when considered with other changes.
- Take care in selecting a qualified investigator—failure to do so may lead to MOL involvement, which may affect claims of legal privilege and generally reduce control over the investigation.
- The more fair your process is, the more likely your investigation is to be useful---both in instilling confidence in employees and in withstanding scrutiny in litigation.
- To see the complete legislation, click here: http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=3535.