New Changes to the Canada Labour Code Regarding Workplace
Harassment
and Violence in
a Federally Regulated Workplace
By
Robert Néron*, LL.B., LL.M.
In November 2017, the Canadian government tabled Bill C-65 (Bill) related to the Workplace Harassment and Violence Prevention Regulations. The proposed bill will come into force on January 1, 2021, and employers in federally regulated industries have a six-month timeframe to comply with the new regulations. The bill also replaces the violence prevention provisions contained in the Canada Occupational Health and Safety Regulations found in Part II of the Canada Labour Code (Code).
The three main pillars contained in the bill are intended to prevent harassment and violence incidents in the workplace from occurring, create an effect response to these incidents when they do occur, and support the parties and employers in the investigation process. Moreover, the bill includes “psychological injuries” and “psychological illnesses” as consequences of harassment and violence in the workplace, instead of focusing strictly on physical injuries.
In order to prevent harassment and violence prevention in a federally regulated workplace, the essential elements that the bill introduces in the Canada Labour Code establishes a range of support measures, which may include health and safety representatives, counselling services, and policy or workplace committees.
The bill proposes to adopt a policy that protects employees from workplace harassment and violence with the input and collaboration of the policy committee, the workplace committee, or health and safety representatives.
The bill also proposes to educate and train employees and employers to assess situations that may constitute or lead to harassment and violence and deal with them accordingly. It also requests to develop a process that will immediately address and respond to incidents of workplace harassment and to provide adequate support and corrective measures to prevent future and further occurrences of workplace harassment and violence.
In essence, the bill introduces several modifications to the Code by providing a harmonized regime for both workplace harassment and violence under Part II of the Code, which applies to private and public sectors in federally regulated industries.
The new comprehensive regime also fully addresses the question of harassment and violence, including sexual harassment and sexual violence. In addition to widening the scope and application of Part II of the Code, the bill also includes the definition of workplace harassment and violence to the Code. The amended Section 122(1) of the regulations states:
“Harassment and violence means 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 (harcèlement et violence).”
Moreover, the bill dictates several duties of the employers with regard to harassment and violence in workplace harassment and violence incidents while providing protection to victims. Employers are also obligated to provide support in every way possible to employees who have been affected by such incidents.
Employers must also ensure that all employees are trained in the prevention of workplace harassment and violence and to inform them of their rights and obligations in this regard. Mandatory training on workplace harassment and violence prevention should be given within three months of hiring or one year after the regulation comes into force on January 1, 2021.
Employers must also investigate, record, and report not only all accidents, occupational illnesses, and other hazardous occurrences known to them but also incidents of harassment and violence, in accordance with the new regulations.
Employers are mandated to ensure the resolution of a complaint within one year after the day on which it was received. Employers are also required to take action if the occurrence of workplace harassment and violence becomes known to the employer within three months of the employee ceasing employment.
Harassment Complaint Process
Employees may file a harassment and violence complaint orally or in writing either to their supervisor or to the person designated in the workplace harassment and violence prevention policy. Further, after receiving the complaint, employers have five days to confirm receipt of the notification of the complaint and must try to settle it through conciliation within 90 days.
If a complaint ends up unresolved, the bill allows the complaint to be referred directly to Employment and Social Development Canada (ESDC) for investigation. The minister will have to investigate the complaint unless he/she believes that the complaint has been adequately dealt with in a procedure established under the Code or that the matter is considered to be an abuse of process.
The bill also addresses the investigation and resolution of workplace harassment and violence complaints. It focuses on the qualifications of the competent persons designated to investigate the complaint. Therefore, employers must ensure that the individual designated to investigate the complaint possesses the required knowledge, training, and experience to do so under the Code.
It is worth noting that, when ESDC agrees to conduct an investigation into an unresolved complaint, it may join the investigation with an ongoing one that deals with the same issues and involves the same employer. In this case, the minister may issue a single decision.
As a whole, Bill C-65 amendments institute mandatory requirements and tight timelines that require employers to significantly adjust or overhaul the measures they have in place to handle workplace harassment and violence complaints. Thus, it offers a harmonize and comprehensive harassment and violence prevention regime for federally regulated industries, along with federal departments and agencies.
* Robert Neron is an experienced arbitrator and a senior
workplace investigator who has arbitrated and investigated several workplace
harassment complaints in the public and in the private sectors.
