Canadian HR Reporter

July 2019 CAN

Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.

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CANADIAN HR REPORTER JULY 2019 2 NEWS Harassment and violence regulations clarify obligations Employers should prepare now for changes in 2020: Experts BY SARAH DOBSON FEDER ALLY REGUL ATED employers facing changes under Bill C-65 around workplace ha- rassment and violence — set to come into force in 2020 — now have more details to work with after the government's release of proposed regulations. With these regulations, you're seeing a shift towards a much more proactive system with more obligations on employers, said Malini Vijaykumar, a labour and employment lawyer at Osler in Ottawa. "Some employers may think, 'OK, well, I'm meeting my obliga- tions with regards to workplace violence and harassment, because if somebody makes a complaint, I know what to do.' But, in fact, these regulations require employers not just to kind of sit back and wait for complaints — they actually require employers to do, for example, pro- active training, proactive work- place violence risk assessments. So there are more obligations than employers might think." And these are substantive re- quirements, she said. "I think that's why the federal government has released the pro- posed regulatory texts this early… so that employers can get ready for the changes." ese regulations largely codify best practices, said David Foster, a labour and employment lawyer at Hicks Morley in London, Ont. " e Canada Labour Code was short on substantive provisions in terms of violence and harassment before these changes. And this, to a large extent, echoes what other provincial jurisdictions like On- tario (have) done — but in some cases goes further." Overall, the proposed regula- tions align with the other jurisdic- tions, but the primary area where there is a diff erence is in the defi - nition of harassment and violence on a full continuum of inappropri- ate behaviours, from teasing and bullying to physical violence, said Christopher Simard, spokesper- son for Employment and Social Development Canada. "Further, Bill C-65 ensures that employer obligations also apply to former employees in relation to occurrences of harassment and violence if the occurrence becomes known to the employer within three months after the day on which the employee ceases to be employed. However, British Columbia, Quebec and Saskatch- ewan have also moved in this direction and currently allow for- mer employees to bring forward a complaint." Prevention policy As part of the new rules, employ- ers would be required to jointly develop a prevention policy that outlines information on how they will address harassment and violence. e policy must also outline how an employer is to be informed of external dangers — such as family violence and stalking — that could result in harassment and violence, and the measures they may implement to minimize those dangers. It's a fairly standard interpreta- tion, said Foster. "We're talking about family violence and domestic violence. at's recognized as a hazard that can show up in the workplace in other jurisdictions, as well." It's not just about how employ- ees relate to each other or their managers — there must also be consideration of whether em- ployees are experiencing, for ex- ample, intimate partner violence at home, said Vijaykumar. "Could that pose a threat to their safety in the workplace or to the safety of other employees? And how is the employer going to deal with that if it comes up?" But the regulations aren't exact, she said. " e measures themselves are supposed to be contextualized to the workplace and to that em- ployer's needs. All the regulations provide is an obligation on the employer to develop measures — whatever those suitable measures might be." Resolution process As part of the resolution process, employers would be required to respond to every notifi cation of an occurrence of harassment and violence — within fi ve days. "Employers now have fi ve days to confi rm that they have this no- tifi cation, let the parties know or the applicable party know how the policy can be accessed, explain the resolution process, and let them know that they can get represen- tation during the resolution pro- cess," said Vijaykumar. ere are some very tight time- lines, so it's going to be "a little bit onerous for federally regulated employers to manage," said Shane Todd, a partner at Fasken Martin- eau DuMoulin in Toronto. "I'm hoping they do what the Ontario government did, which was a lot of education in advance, even after they go live. And there was more education rather than hard enforcement right out of the gate, because I think that (employ- ers will) need some time to get up to speed on things." ere are then three ways to resolve a dispute: early resolu- tion, conciliation (both within 180 days) and investigation. With the three-pronged pro- cess, employers must make every reasonable eff ort within 90 days to try to settle complaints, he said. "If they can't, then you're either headed into conciliation or into an investigation conciliation, and (the government hasn't) really provided much guidance on this. Essentially, it sounds like a me- diation process. And if both par- ties can agree on who will do the conciliation, then it goes through whatever that process is — I guess it's a structured mediation. And if you settle it that way, great, but there's no guidance in the regula- tions about how and when that needs to be done. It says only that it's only available if everybody agrees, and that it has to be done within 90 days." But depending on who's in- volved, 180 days is not a lot of time, said Todd, "particularly if you want a high-profi le experi- enced mediator — these people are booked for months, some- times years, in advance." e regulations also propose a resolution process that "focuses on greater communications," said the government, by requir- ing monthly updates on the investigation. e system "is really focused on putting pressure on the em- ployer to provide monthly status updates, respond within certain times, so that the complaint to the resolution process is held to be completed within a certain time frame, or at least your progress," said Vijaykumar. e resolution process would be much more detailed than what is in place now, said Todd. "And maybe there are pros and cons to that in providing certainty to victims who are experiencing workplace violence, but from an employer compliance perspec- tive, this is another thing I have to get my staff up to speed on. It's another cost, it's another process I have to keep an eye on." If the employer can't agree on a competent person for the investi- gation within 60 days, it can apply to have someone appointed, he said. " e person who investigates obviously has to be neutral, they have to be properly trained, they have to have experience. And so I wonder if, currently, many internal people will meet these requirements? Because they're very detailed — you have to have knowledge training and experi- ence relevant to harassment and violence in the workplace." e approach is slightly diff er- ent than what's seen in the On- tario context, where workplace committees are often involved in policy review and development, said Foster. "But even these regulations do make it clear that the workplace committee isn't involved in the in- vestigation of an actual incident. And that's an important measure to preserve the privacy of the par- ties involved." Once the investigation is done, the employer must fi le two re- ports, one that is more detailed, the other which is more of a sum- mary, with analysis, fi ndings and recommendations, said Todd. "I guess the purpose of that… is that it could be shared more broadly, for the purposes of pre- venting future incidents. So (that means) a little bit more work on the investigators," he said. "It's probably good information for employers to have because you'll be able to see larger trends: 'We have a concentration of issues in this particular workplace or in these particular types of report- ing scenarios.' And so it might be useful for employers who want to take proactive steps to cre- ate things going forward. But it's something that (they're) not cur- rently keeping track of." Canadians speak out In developing the regulations supporting Bill C-65, the federal government held roundtable discussions with various stakeholders. The fi nal phase involved an online survey reviewing the proposed regulatory framework, with 1,018 Canadian respondents: Five days is appropriate to respond to a noti cation of harassment and violence • Yes (86 per cent) • Less than fi ve days (six per cent) • More than fi ve days (fi ve per cent) Monthly updates on the status of the resolution process are appropriate • Yes (85 per cent) Two months is appropriate for parties to agree on an investigator • Yes (80 per cent) • More than two months (10 per cent) • Less than two months (fi ve per cent) Six months is appropriate to implement investigator's recommendations • Yes (78 per cent) • More than six months (11 per cent) • Less than six months (six per cent) The appropriate frequency of prevention training • Annually (54 per cent) • Every three years, unless required more frequently (28 per cent) • As required (nine per cent) And now for something completely diff erent Forcing major change on employees can lead to constructive dismissal, but some change is necessary and reasonable Open to open-concept Switching from traditional cubicles to shared desks will be a welcome adjustment Discrimination can be costly B.C. tribunal sides with seven Caucasian workers who said they were fi red or forced to resign because their employer wanted to use Chinese workers Finding the right people for the right job is harder than we think How do we ensure we have the right talent with the right skills to be successful, not just for today, but for the future? Workers displaced by automation to receive fresh start via pilot program Federal government announces $1.1 million for reskilling eff ort How bots, AI and robotic automation are shaping human resources Panel addresses technological changes within profession Employers take fl exible approach to Raptors parade as fans head downtown Many Toronto employees encouraged to attend NBA championship celebration Nevada law prevents most employers from rejecting cannabis users Ruling addresses 'moral and social dilemma' BLOGS BRIEFS NEWS VIDEO BLOGS BRIEFS NEWS VIDEO Recent blogs and news stories posted on www.hrreporter.com. Check the website daily for updates from Canada and around the world. TRAINING > pg. 36

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