Forthcoming amendments to the Canada Labour Code (the “CLC”) and its corresponding regulation the Canada Occupation Health and Safety Regulation (the “COHSR”) impact how federally regulated employers prevent and respond to workplace harassment (Bill C-65). Although not yet in force, federally regulated employers would be well advised to tailor their practices now in anticipation of the new rules.
The current approach is whether the conduct falls under the existing definition of violence as defined within the statutory scheme. Depending on the facts of the case, this approach can fall short of meaningfully addressing harassment.
The approach within the new (but not yet in force) legislation incorporates a new definition of harassment:
“… any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment”
The new rules also require employers to create robust harassment and violence prevention policies and practices. These new rules require employers to:
- Prevent workplace harassment and violence by conducting regular workplace assessments that identify risks of harassment and violence in the workplace. Once the risks are identified, employers are required to implement preventative measures.
- Incorporate new material into harassment and violence prevention policies and ensure that employees are aware of those policies.
- Provide regular and mandatory harassment and violence training which includes instruction on elements of the prevention policy, as well as other elements including crisis prevention, personal safety and de-escalation techniques, and how to respond appropriately to different types of incidents.
- Where the employer becomes aware of harassment or violence, the employer must respond in an expeditious manner to the incident and make every effort to resolve the incident internally.
- Adhere to strict privacy and consent to disclose identity requirements to protect the identity of the parties to the harassment or violence.
- Where a matter is unresolved, the employer must appoint a competent person to investigate the incident of harassment or violence. In some cases, the competent person is an independent investigator who meets the competency requirements. In selecting the person, the employer must adhere to a selection process outlined in the legislation.
- The employer must keep records of the training afforded to employees and of any reports issued by competent persons.
- The employer must consider the recommendations of the competent person and take measures to prevent a recurrence of the workplace harassment or violence.
Provincial and federal statutory expectations relating to harassment and violence prevention have considerable overlap. If an employer has any questions about which statutory scheme relates to their business or institution, they would be well advised to seek advice on the question, Federally regulated employers would also be well advised to act now to ensure that their policies and practices are in compliance once the new federal amendments in Bill C-65 come into force.