Parliament is back in session as of this week, and will return to the review of Bill C-65: An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1 (the “Bill”). The Bill is expected to overhaul the piecemeal regulatory structure for the prevention of harassment and violence, including sexual harassment and violence, in federal workplaces.
On June 18, 2018, the Standing Senate Committee on Human Rights presented its report, which included amendments to the Bill, to the Senate for consideration. Following additional discussion, the amended Bill was given 3rd Reading and passed by the Senate. The House of Commons must now decide whether to accept those amendments.
If passed, the Bill will expand employers’ obligations to prevent, investigate, take action on, and report harassment and violence in federally-regulated workplaces. The proposed definition of “harassment and violence” is broad and includes “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.” According to the Senate, this definition aims to “capture evolving types of harassment in the workplace, because as we know, a workplace is not stagnant; it changes and evolves.”
The Bill expressly requires employers to:
- ensure that instances of harassment and violence are investigated, recorded, and reported;
- take steps to prevent and protect against harassment and violence in the workplace;
- respond to occurrences of harassment and violence in the workplace, and offer support to employees affected by harassment and violence in the workplace;
- provide employees, including supervisors and managers, with training in the prevention of harassment and violence in the workplace;
- ensure that the privacy of complainants and respondents involved in a workplace harassment or violence investigation is protected by prohibiting workplace committees, policy committees, and health and safety representatives from participating in those investigations, or receiving any information that is likely to reveal the identity of a person involved in an investigation;
- ensure employees are informed of their rights and obligations under this Part of the Labour Relations Code; and
- make available to employees in printed and electronic form: (1) a copy of this Part of the Labour Relations Code; (2) a statement of the employer’s general policy about health and safety in the workplace; and (3) any other information related to health and safety prescribed or specified by the Minister.
The Bill contemplates that the employer’s obligations set out in the Code will apply to current employees and former employees. However, those obligations are limited to occurrences of harassment and violence in the workplace which become known to the employer within three months after the day on which the former employee ceased to be employed by the employer. Nonetheless, the Minister has discretion to extend this time period.
The Bill also requires employers, in their workplace harassment and violence prevention policies, to designate a person to receive complaints of harassment and violence. This requirement aims to prevent employees from having to report workplace harassment or violence to their supervisors, particularly in the event that the complaint is against the supervisor.
Upon receiving a complaint, the supervisor or designated person must attempt to resolve the complaint with the employee promptly. However, unlike other complaints, the employer cannot refer an unresolved harassment or violence complaint to an internal committee or representative. This is intended to protect the parties’ privacy and prevent undue influence.
The Bill, rather than specifying what employers must do to discharge their duty to investigate harassment or violence complaints, grants the government the power to make regulations respecting an employers’ obligations to investigate, record, and report complaints.
In Senate Committee discussion, representatives have advocated a regulation-based investigatory process that requires employers to enforce their harassment and violence prevention policies through mediation and, when necessary, investigations by independent investigators. Whether such a process will be implemented, and what it will entail, is not yet clear.
Under the Bill, complaints of violence or harassment that are not resolved between the employee and the employer fall to the Minister, who is obligated to investigate the complaint unless the Minister is of the opinion that the complaint has been adequately dealt with or the matter is trivial, frivolous, or vexatious.
Given the expanded obligations on employers under the Bill, we recommend developing a policy which:
- defines and prohibits harassment and violence;
- sets out preventative measures including training for employees, supervisors, and managers on harassment and violence;
- explains how to report instances of harassment and violence, and specifies a designated person to receive such complaints that is not a supervisor;
- describes an investigative process;
- describes how employees who have experienced harassment and violence can obtain support; and
- prohibits retaliation for making or participating in a complaint, and addresses vexatious complaints.
If the workplace is unionized, any policy must be consistent with the collective agreement.
It is important to note that the Bill is not final, and may be subject to further amendments. While this should not stop employers from starting to review and revise, or develop, a policy, it is advisable to delay finalization until the Bill is passed.