Federally-regulated employers (which include banks, airlines, transportation and telecommunication companies amongst others) had to adjust to new ways of dealing with harassment, bullying, discrimination and workplace violence allegations as of January 1, 2021, with the enactment of the Workplace Harassment and Violence Prevention Regulations under the Canada Labour Code.
Federally-regulated employers have always had an obligation to investigate complaints, but there are some new and challenging requirements of the 2021 Regulation. These include:
1. Prescribed timelines.
These timelines are not too tight, but having to keep an eye on them is an adjustment. For instance, acknowledging receipt of the concerns within 7 days, starting the investigation within 45 days, keeping the parties informed of the status of the investigation with monthly updates, and completing the investigation within a year. The kicker is, the one year includes fully implementing any recommendations from an investigator’s report. Depending on how detailed those recommendations are, and the size of the workforce or the amount of people involved, one year may be a tight deadline.
Non-unionized employers will have to remember to inform the parties that they may be represented through the investigation process, and not panic if the respondent brings legal counsel to the interview.
If you are investigating, you must be an expert. HR folks take note. The Regulations require you to be trained in investigative techniques, and that you know the law, both the Canada Labour Code and the Canadian Human Rights Act.
4. Appointment process.
Who gets to investigate is now subject to approval by the policy committee in your organization, or by the health and safety representative (referred to by the Regulation as the “Applicable Partner”). You can develop a list of investigator names and have that list approved by the Applicable Partner, so all your internal investigations people can continue to do their job as they were before. If you don’t create that list, the Regulations give the complainant and the respondent the prerogative of choosing who investigates, though they must agree on a name. From a practical perspective, this last option can be difficult to implement. These are two people who no longer see eye to eye, and it is unlikely they will agree on the issue of appointing an investigator. If the parties can’t agree, the government can provide an investigator from their own list of experts.
You have to offer the parties an alternative to a formal investigation. The Regulation speaks of resolution via “conciliation”. The term is not defined by the Regulation, though is generally understood to mean a way of resolving a dispute with the assistance of a third party. Some employers are wondering what exactly is expected, and what the costs would be to hire external conciliators or train their own HR on conciliation techniques. When the allegations are related to sexual harassment, it is important to carefully consider how an offer of conciliation will made, what the format of that conciliation would be, and how it could be triggering or re-traumatizing for the complainant.
6. Former employees can bring complaints too.
They have 3 months to do so after the end of their employment. However, employers need to remember that their obligations to investigate concerns do not arise only under the Canada Labour Code. There is the possibility of liability under the Canadian Human Rights Act for not investigating, even if the employee is no longer with the organization, or has left longer than 3 months ago.
7. The content of the investigation report is now prescribed.
The report has to mention the circumstances in the workplace that contributed to the harassment and make recommendations on how to prevent similar occurrences (so investigators have to put their minds to systemic and workplace culture issues). Reports must not reveal the identity of the parties and a copy must be provided to both the complainant and the respondent, as well as to the Applicable Partner. Investigators need to be very cautious in their writing of the report. Sometimes the most careful of redactions can still reveal enough information that any of the recipients could piece together on who did what to whom and when and who testified against them. Describing titles, relationships or departments/locations in the report may reveal the identity of the parties. The employer must keep a copy of the report for a period of 10 years, which is longer than the regular 7-year period for business records, so make sure you make the necessary arrangements to avoid premature destruction.
8. Government reporting.
If you were already keeping solid records of all the concerns brought forward by employees, or your HR management system already provides you with case management and fulsome data in relation to concerns, congratulations. You may be halfway there. In addition to the already existing requirement to submit annual reports on all hazardous occurrences in the workplace, the government is now looking for the following things by March of each year:
- the total number of occurrences,
- the number of occurrences that were related to sexual harassment and violence and non-sexual harassment and violence,
- the number of occurrences that resulted in the death of an employee,
- if known, the number of occurrences that fell under each prohibited ground of discrimination set out in subsection 3(1) of the Canadian Human Rights Act,
- the locations where the occurrences took place, specifying the total number of occurrences that took place in each location,
- the types of professional relationships that existed between the complainant and respondent, specifying the total number for each type,
- the means by which resolution processes were completed and, for each of those means, the number of occurrences involved, and
- the average time, expressed in months, that it took to complete the resolution process for an occurrence.
9. Penalties for non-compliance.
HR and management in charge of workplace investigations need to pay close attention to the new requirements in the Regulation and adjust their investigations and related processes accordingly. The government has a non-compliance approach that always starts with a request to voluntarily comply. Continuous non- compliance will lead to monetary penalties and the publication of the employer’s name in certain circumstances.
Catalina Rodriguez has experience as a workplace investigator in the Federal sector.
This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].