By Nic Leblanc | March 11, 2024
This general legal information (not legal advice) is subject to change, and there may be exceptions based on your specific circumstances. You should obtain independent legal advice before taking any action which may impact your legal rights. If you are an employee or an employer and need legal advice regarding this issue, an OA lawyer will be pleased to assist you with your situation.
Provincially-regulated employers have responsibilities to prevent and address harassment and violence under the Ontario Human Rights Code (the “Code”) and Occupational Health and Safety Act (OHSA). Federally-regulated employers have responsibilities under the Canadian Labour Code (CLC) and the Canadian Human Rights Act (CHRA). Although a harassment or violence prevention policy may act pre-emptively for the benefit of employees, these policies should adequately address circumstances in which incidents or complaints are brought forward. An employer should use these policies to ensure they follow proper procedures in the event of an incident or complaint. They should also ensure that any workplace policies are compliant with any employer obligations pursuant to the applicable legislation.
Starting Point: Reviewing the Applicable Legislation
An employer should begin with reviewing the applicable legislation in order to determine their obligations and understand what the legislation seeks to do. No employer wants to be in a position where their policy fails at a procedural level, before even considering its substance. Depending on the legislation and any threshold requirements, this might be a requirement to have the policy written, posted in a conspicuous place in the workplace, and/or reviewed periodically. For example, the OHSA requires that employers review their harassment and violence prevention policy annually.
Employers developing a harassment or violence prevention policy should be mindful of several factors.
Defining Key Concepts
Key concepts, such as harassment and violence, should be defined in the policy. Employers should consider whether they wish to use established definitions. For example, harassment is defined in subsection 10(1) of the Code and subsection 1(1) of the OHSA. Employers may also need to consider whether their specific workplace requires that an established definition be altered; however, employers may want to ensure that they do not accidentally narrow any statutory definitions. Employers should also keep in mind that regardless of their policy, applicable legislation and its definitions are still applicable and act to protect employees.
Employers should consider whether they would like to further highlight examples of harassment (though clearly stating that the list is non-exhaustive).
An employer may want to consider whether they should be defining sub-concepts. For example, while sexual harassment is a form of harassment, it may be beneficial to the employer to clearly explain what sexual harassment is as a means of prevention. Employees may not know that sexual harassment does not always need to be “sexual”. For example, sexual harassment can occur when an employee bothers another because of how they act, look, or dress, which the harasser feels does not conform to their views of a man or woman.
Other Workplace Policies
An employer should ensure a link exists between any harassment or violence prevention policy and the employer’s disciplinary policy. An employer may want to consider including in their policy that a violation may be grounds for disciplinary action, up to and including termination, in accordance with the employer’s disciplinary policy. Employers should take care by using language stating that the policy will function in unison with their other policies, regardless of whether they are explicitly mentioned. For example, harassment or violence complaints may lead to an investigation which could trigger provisions in an employer’s privacy policy.
Internal Complaint Procedure
Management must have a clear understanding of their responsibilities. Employers should take immediate and appropriate action when informed about instances of suspected harassment, or they observe it themselves. Complaints should not be dismissed or downplayed. In short, management must ensure compliance with the internal harassment complaint process.
While the purpose of a policy is prevention, mechanisms must be available for the procedure should someone allege that they were harassed. While the employer may prefer that the alleged harasser be told that their behaviour is unwelcome and ask them to stop, the reality is that this is not always practical due to the power dynamic or relationship between the two, either in a personal or employment context.
An employer should consider listing at least several options for who someone can approach to make a complaint. This course of action mitigates the prospective dilemma that someone can face should they feel uncomfortable approaching the individual that handles all complaints. In a unionized environment, an employer may want to consider whether one of the options for reporting can be to a union representative.
An employer should ensure that management understands the internal complaint procedure and associated responsibilities. For example, management must understand the seriousness of the complaint and when it is appropriate to seek an external investigator.
Special Considerations under Human Rights Legislation
Human rights legislation provides for remedial relief after harassment or violence. The employer may want to acknowledge directly in the policy that the policy is not meant to discourage any employee from exercising their rights as they may relate to human rights legislation.
Reprisals
An employer may want to state that reprisals are prohibited for complaints made in good faith or due to the participation in an investigation. Reprisals are prohibited under both the Code[1] and OHSA.[2] Under legislation, reprisal has generally been interpreted fairly broadly. For example, the Code protects people from reprisal or threats of reprisal. There is no requirement that a person who alleges reprisal must have already made a complaint under the Code or that their rights have even been infringed.[3]
Conclusion
Preventing harassment or violence in the workplace should be the primary objective of all employers. Nonetheless, it is crucial that an employer adequately respond and investigate allegations of harassment and violence, and ensure that they remain on-side of any applicable legislation. It is highly recommended that an employer have a lawyer draft or review their harassment or violence prevention policy.
O’Neill Associates is proud to support students from the Bora Laskin Faculty of Law (Lakehead University, Thunder Bay) through the school’s unique Integrated Practice Curriculum (IPC) Program. The IPC, a Bora Laskin variation of the “articling” program students complete at most other law schools, matches students with law firms to work side-by-side with experienced lawyers for one full semester during the third and final year. This article was written by Nic Leblanc who will be completing his third year IPC with OA in the winter of 2024.
[1] Human Rights Code at s. 8.
[2] Occupational Health and Safety Act at s. 50.
[3]Noble v York University, 2010 HRTO 878 at paras 30-34.