Rick Dunlop and Madeleine Coats

The proposed Workplace Harassment and Violence Prevention Regulations (“Regulations”) will replace the current workplace violence obligations in the Canada Occupational Health and Safety Regulations. Although the Regulations will likely not take effect in 2019, federally regulated employers should start thinking now about the ramifications of these Regulations on their workplaces.

The Regulations impose detailed policy development, training, complaint and reporting requirements. The Regulations attempt to consolidate the existing patchwork of regulations concerning workplace harassment and violence, and create a “one-stop-shop” with respect to the rights and responsibilities of employees and employers alike surrounding violence and harassment in federally regulated workplaces.

Five key takeaways

The five key takeaways are:

1. Workplace assessments and prevention policies are mandatory and must be updated.
2. Harassment training is mandatory.
3. There is a comprehensive occurrence (i.e., “complaint”) process that seeks to protect the identity of witnesses and third parties. If the occurrence proceeds to an investigation, two reports must be prepared:
   1. A summary report; and
   2. A final report.
4. Both the complainant and respondent have the right to representation in the contest of any occurrence.
5. There are frequent occurrence reporting requirements.

Practical concerns

The proposed Regulations raise the following concerns:

• The complainant’s and respondent’s right to representation will likely result in a more litigious approach to the resolution process.
• The final report may contain findings that form the basis for disciplinary action. However, the final report cannot disclose the identity of the third party or witness who provides the evidentiary support for such findings. The use of the final report to support disciplinary action in subsequent litigation (e.g., arbitration, wrongful dismissal suit) will be challenging.
• It remains to be seen the extent of the impact that these Regulations will have on employers tasked with addressing complaints brought forward by an anonymous source (either the complainant themselves, or a third party witness). Employers will be expected to address these issues, however, which in the context of an anonymous complaint is always challenging.

The deeper dive into the Regulations

The following is a more in-depth summary of the Regulations:

1. Key terms in the Regulations

The Regulations have some key terms, including:

• “applicable partner” means a policy committee, or if no policy committee exists, a workplace committee or the health and safety representative;
• “designated recipient” means the individual designated by the employer to receive notification of an occurrence;
• “third party” means a witness to an occurrence or someone who is informed of an occurrence;
• “occurrence” means an occurrence of harassment and violence in the workplace.

2. Develop prevention policy

The employer and applicable partner must jointly develop a workplace harassment and violence prevention policy that, among other things:

• outlines the factors that contribute to workplace harassment and violence;
• the training that will be provided;
• an outline of the resolution process, including identification of the designated recipient;
• the manner in which an occurrence may be brought to the designated recipient’s or employer’s attention;
• the manner in which the employer will protect the privacy of persons who are involved in an occurrence; and
• the support measures available to employees.

3. Preventative measures

The employer and applicable partner must jointly carry out a workplace assessment that identifies the risks related to harassment, e.g., culture, conditions and activities of the workplace and any reports, records and data that are related to harassment and violence in the workplace.

The assessment must be updated at least every three years, but more often if there is a change to the identified risks or a change that compromises the effectiveness of a preventative measure.

The individuals appointed to conduct the workplace assessment and develop and implement the preventative measures must be qualified by virtue of their training, education or experience.

4. Emergency procedures

The employer and applicable partner must jointly develop emergency procedures that are to be implemented if an occurrence poses an immediate danger to the health and safety of an employee or when there is a threat of an occurrence.

5. Training

The employer and applicable partner must develop or identify workplace harassment and violence training that is to be provided to employees, the employer and the designated recipient. The training must be specific to the workplace’s culture, conditions, and activities and include such elements as:

• the relationship between workplace harassment and violence under the Canada Labour Code (“CLC”) and discrimination under the Canadian Human Rights Act (“CHRA”);
• how to recognize, minimize and prevent harassment and violence; and
• crisis prevention, personal safety and de-escalation techniques, and how to appropriately respond to various types of occurrences.

The designated recipient must receive training before assuming their duties, and each new employee must receive training within three months of commencing employment. The employer must receive training and must ensure that employees and the designated recipient receive training every three years. Employees who are assigned to a new activity or role for which there is an increased or specific risk must receive additional training.

6. Support measures

The employer has to make available to employees information respecting the medical, psychological and other support services available within their geographical areas.

7. Resolution process

The following are the key steps in the resolution process:

a. Non-anonymous and anonymous notification

A principal party may notify the employer or the designated recipient of an occurrence anonymously, or non-anonymously.

b. Resolution

Within five days of receiving notification of an occurrence, the employer or designated recipient must:

• contact the complainant and confirm receipt and inform the complainant of the manner in which the prevention policy is accessed;
• explain each step of the resolution process;
• inform the complainant that the complainant may, at any time, be represented during the resolution process.

The Regulations do not provide a time by which employers or designated recipients have to contact the respondent, but on the first occasion that they do so, they must provide the same information that was provided to the complainant.

c. Early Resolution

The employer or designated representative must make every reasonable effort to resolve the occurrence, and if it is not resolved during this early process, the complainant has the choice to complete the resolution process by either conciliation or investigation. The early resolution and conciliation must be concluded within 180 days of the day on which the employer or designated recipient was notified of the occurrence.

(i) Conciliation

Conciliation may only occur if the following pre-conditions are satisfied:

• An investigation of the occurrence has not begun;
• The complainant and respondent agree to conciliation and agree on who is going to conciliate.

If the conciliation cannot proceed or is unsuccessful and the complainant chooses to proceed with the resolution process, the occurrence must be investigated.

(ii) Investigation

If the occurrence proceeds to an Investigation, the following applies:

• The employer or designated recipient must notify the complainant and respondent that an investigation will be carried out.
• The employer (or designated recipient), complainant and respondent must agree on the investigator. If there is disagreement, within 60 days after notice of the investigation, the investigator will be appointed by the Minister responsible for the CLC.
• The investigator must:
  • not be the respondent or a person who directly reports to the respondent;
  • be trained in investigative techniques;
  • have knowledge, training and experience relevant to harassment and violence;
  • know the CLC, CHRA and any other legislation relevant to harassment and violence in the workplace.
• Any list of investigators proposed by an employer must have been jointly developed or identified by the employer and applicable partner.
• Once appointed, the investigator must be provided with all the relevant information.

(iii) Final report and summary report

The investigator must investigate the occurrence and provide a final report and a summary report:

• The final report must be provided to the employer, complainant and respondent and outline:
  • a detailed description of the occurrence;
  • the investigation’s methodology;
  • analysis and findings; and
  • recommendations to eliminate or minimize the risk of a similar occurrence.
• The summary report must be provided to the employer, complainant, respondent and the applicable partner and provide:
  • the general description of the occurrence;
  • a summary of the analysis and findings; and
  • recommendations regarding the elimination or minimization of the risk of a similar occurrence.

The summary report cannot disclose, directly or indirectly, the identities of the complainant or respondent.

(iv) No identification of witnesses or third parties in either report

The final report and summary report “must not disclose, directly or indirectly, the identity of a third party or any witness.”

8. Implementation of recommendations

The applicable partner and employer must jointly determine which of the recommendations set out in the summary report should be implemented. The employer must implement all such recommendations within one year of notification of the occurrence.

9. Employer’s decision prevails if employer and applicable partner disagree

If the employer and applicable partner are unable to agree on any matter that is required by the Regulations, the employer’s decision prevails.  In the event of such disagreement, the employer must keep a record of its decision and the reasons for it.

10. Joint review and update of workplace assessment if anonymous complainants, reluctant complainants, or respondent is not employee/employer

The employer and applicable partner must jointly review, and, if necessary, update the assessment if:

• the complainant chooses to remain anonymous;
• the complainant chooses at any time before the occurrence is investigated not to proceed with the resolution process; and
• the respondent is not an employee or employer.

11. Record keeping

The employer must keep various records created pursuant to the Regulations (e.g., the prevention policy, documentation relating to the assessment and its review and update, notifications, investigation reports).

12. Reports to applicable partner and minister

Every six months, the employer must provide the applicable partner with a report that sets out various information relating to occurrences and the resolution of such within the previous six months.

By March 1 of each year, the employer must provide the Minister with a detailed annual report relating to the occurrences.

This update is intended for general information only. If you have questions about the above, please contact a member of our Labour & Employment group.

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