Canadian HR Reporter

www.hrreporter.com 3 communication between the employer and the parties through: monthly updates; prescribed timelines for completing the resolution process; and increased control on the part of the principal party — the person making the complaint — regarding the subsequent steps for resolution should negotiated resolution not complete the process, says the government. The resolution process includes multiple options for resolution: nego- tiated resolution, conciliation and investigation. While the first two are more flexible, if an investigation is chosen to address the occurrence, employers will have to follow the requirements regarding the qualifications of an investigator, how they may be appointed, the report the investigator must submit and how the employer will handle this report. With these changes, the principal party and the employer can now sit down to review the notice of occurrence and determine whether it describes an complaint — of harassment and violence in their workplace that is not anonymous and select a person or work unit as a "designated recipient" who is properly trained to deal with the situation. It's important to note that the investi- gators must be qualified, says Raso. "That has been seen [as an issue] with complaints not being properly dealt with because, a lot of times, they're just dealt with internally; they may be dealt with by somebody within the organization who has no skill and training as an investigator. And so, often, the report that comes out is not what it should be, and the findings are not what they should be." HR may now be able to make a case for spending the money to have a qualified investigator if there's no one internally who's qualified, she says. And employers are probably going to want to come up with a list of predetermined persons with whom they're comfortable ahead of time and consider qualified under the regulations, "so, if there is a complaint, they can quickly negotiate or have communication with… the principal parties." HR people, if they're going to do in-house investigations, have to be very careful that there's no prejudice, says Kuretzky. "And that's why independent investi- gators are often the best format to go with. But when that's not always possible, it's important that it be done by people who are well qualified and don't have any particular bias." Resolution process The regulations outline a resolution process that focuses on greater action, course of conduct or comment that constitutes harassment and violence, says Freitag. "Previously, there really wasn't an opportunity for any of the parties to engage in that sort of initial screening phase… It makes really good sense because why would you ever proceed to an investigation if the threshold issue isn't even captured by the harassment and violence policies?" However, that also is a potential area for pitfalls, she says. "If they come to the conclusion that this didn't even meet the required threshold, then that deprives a complainant from going through the entire process. So, that's an area… of potential risk but also a potential weeding-out process that's important." Determining whether a complaint is valid will be highly dependent on the policy that employers develop as part of the requirement of the legislation, says Fong. "That is basically your decision-maker on whether the complaint fits within that definition and [it] then triggers the rest of policy." The negotiated resolution or con- ciliation part is quite emphasized in the regulations with the hope that the parties will make use of this before they go through an investigation, says Raso. "But if the employee is unhappy with the process and the way the more informal resolution is going, they can automatically pull the plug and say, 'I want an investigation to be started.' So, it gives them that control." Previously, the conciliation phase could be discontinued; now, it can continue if SEXUAL HARASSMENT COMMON IN CANADA "We're going to see policies in terms of scope becoming a little more comprehensive." Laura Freitag, Filion Wakeley Thorup Angeletti no investigation has been initiated or if an investigation has been initiated, says Freitag. "It allows parties to continue to engage in conciliation during the period at which the investigator is interviewing people, for example, as long as that report isn't delivered yet, and I think it just puts more power in the hands of both complainants and respondents and employers to work together to find reasonable solutions before they're given this report that makes findings one way or another." That's to everyone's benefit, she says. "It's this consent model of 'OK, we want to work together to find a solution outside of just the strict structures of the regulation.'" Timelines important It will be important for employers to ensure that they have robust procedures for when they receive a notification, how they deal with that notification and respond within the seven-day deadline that's prescribed, says Freitag. "That's one big area [where] I think… 52% Percentage of women who say they have been subject to sexual harassment in the workplace 28% Percentage of women who say they have been subject to non-consensual sexual touching in the workplace 89% Percentage of women who have taken steps to avoid unwanted sexual advances at work Source: Angus Reid The #MeToo movement has been the catalyst for many workplace reforms around harassment.

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