Since 2010, the Ontario Health and Safety Act requires employers to develop and maintain a workplace harassment policy and a program to implement that policy.

As of September 8, 2016 new workplace harassment rules became law.  It considerably changes the practices and procedures and has an effect on both employers and employees regarding the investigation and reporting on complaints and of harassment in the workplace.

 

There are several new obligations arising out of this law;

1. 1. Employers will be required to conduct investigations not only into situations where there is a formal complaint of harassment, but also “incidents” of workplace harassment.
   

 

Even where there is no formal complaint by a worker an employer has a duty to investigate!

 

2. 2. Both the alleged victim and the alleged harasser (if an employee of the company) must be informed in writing of the results of the investigation and any “corrective action” that has been or will be taken as a result of the investigation.

 

Those who have been subject to harassment will no longer be in the dark about what has transpired once management has looked into the situation.

 

3. 3. The Ministry of Labour inspectors will have the power to order the employer to retain an independent (outside) 3rd party investigator.

This will likely be in situations where the employer failed to investigate or the inspector concludes that the investigation was not “appropriate in the circumstances.”

 

Failure to meet these obligations may result in:

1. 1. Prosecutions of up to $500,000 per count,
2. 2. Personal liability for officers and directors, and
3. 3. An order to retain an outside third-party investigator.

 

The program will need to contain the following components – in addition to the previous requirements:

1. 1. Alternative reporting structures.

There must be procedures for reporting incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser.

Generally, the person who receives the complaint should not be under the alleged harasser’s direct control.

 

The intent is for workers to be able to report harassment to a person who will be able to objectively address the complaint.

2. 2. There are Procedures for investigating and dealing with an incident or complaint.

 

3. 3. Procedures for disclosing (and not disclosing) information.

 

The workplace harassment program must outline how information obtained about an incident or complaint (including identifying information about any individuals involved) will remain confidential, unless disclosure is necessary for the purpose of investigating or taking disciplinary or corrective action with respect to the incident or complaint, or is otherwise required by law.  The Code of Practice suggests that the amount of information provided about the corrective action will depend on the circumstances but must indicate what steps the employer has taken or will take to prevent a similar incident of workplace harassment, if workplace harassment was found.

 

WHAT TRIGGERS A HARASSMENT INVESTIGATION?

Under the amendments to the OHSA, an employer must investigate “incidents” of workplace harassment that come to its attention, even if there is no complaint.

 

If a supervisor becomes aware of an incident they must pass that  information on.

The amendments require employers conduct investigations that are “appropriate in the circumstances.”

 

Here are the minimum requirements for a workplace harassment investigation:

• • The investigator must not be directly involved in the incident or complaint and must not be under the direct control of the alleged harasser.

• • The investigator should have knowledge of how to conduct an investigation that is appropriate in the circumstances.

• • Investigations should be completed within 90 calendar days, unless there are extenuating circumstances;

• • The investigator must remind the worker who allegedly experienced workplace harassment, the alleged harasser(s) and any witnesses of their confidentiality obligations and protections.

• • The investigator must make reasonable efforts to interview all parties involved (including witnesses), even if they are not workers, and must give the alleged harasser the opportunity to respond to the specific allegations raised against him or her.

• • The parties to the complaint should be updated periodically on the status of the investigation.

• • The investigator must collect and review any relevant documents, and take appropriate notes and statements during interviews.

• • The investigator must prepare a written report containing the allegations, response, evidence, findings of fact and a conclusion about whether or not workplace harassment was found. This report must be provided to the employer, supervisor or designated person to take appropriate action.

 

The RESULTS of the investigation and any corrective action must be communicated in writing to the alleged victim and the alleged harasser, if they are a worker of the employer, within 10 days of the conclusion of the investigation.

There is no requirement for the investigation report itself to be shared with such persons.