Canadian HR Reporter

CANADIAN HR REPORTER November 30, 2015 8 NEWS issues of sexual violence and harassment on the public's ra- dar, which prompted the On- tario government to act, said Jed Blackburn, an associate at Cassels Brock Lawyers in Toronto. And while amendments were made to the OHSA back in 2010 with respect to workplace harass- ment, these were fairly general and "did not specifically deal with the issue of sexual harassment," he said. "ere appears to be this per- ception that sexual harassment in particular is something that is perhaps being swept under the carpet or not addressed as proac- tively as it needs to be, versus the more non-sexual types of harass- ment which might be dealt with in a more direct way. "So I think the intent of this bill is really to hone in on that issue, make sure employers are more proactive in dealing with it and, frankly, deal with some of the vagueness of the existing legislation." e changes won't hugely ex- tend the practices of employers that are current with the case law and best practices but they do give a couple of things "more statu- tory oomph," said Janice Rubin, a partner at Rubin omlinson in Toronto. "e problem clearly continues to persist and this is an attempt to remediate the persistent problem in the workplace. And it's based on information that was gath- ered through the hearing process since (Ontario premier) Kathleen Wynne announced her program, the 'Never Okay' program, in the spring," she said. "e fact of the matter is just because you have a policy doesn't necessarily mean that people are behaving in accordance with the policy." ere's a lot of harassment hap- pening, despite awareness, so the culture isn't really changing, said De Angelis. "Only through legislative changes can we sometimes make people feel safer at work," she said. "e fact that now it's in the Occupational Health and Safety Act, I think, provides a legitimate grounds for women to pursue… is has a little bit more teeth because it's going to force the em- ployer to take this issue seriously." A lot of women will not step forward and complain because they see what happens to others and don't want to put themselves in that position, said De Angelis. "e good thing about this leg- islation is the definition of work- place harassment, sexual harass- ment, is now written down, so there is something that can be used, some sort of protection that women can have around the terms." Overall, this legislation may be the push employers have been waiting for when it comes to changing their culture and being more inclusive and welcoming, said De Angelis. "Overwhelmingly, this is going to be an economic benefit because violence, harassment, that affects workers' productivity, sick days, leaving work, quitting, having to train somebody new, so I see this legislation as benefiting every- body, all the parties involved. "We're going to become more aware of what sexual harassment is, we're going to have policies that are going to help workers and, at the same time, we're going to have the employer who is going to ben- efit also economically." Definition expanded In the proposed amendment, the definition of workplace ha- rassment in the OHSA would be substituted with "engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be un- welcome" or "workplace sexual harassment." e latter would include vexa- tious comment or conduct be- cause of sex, sexual orientation, gender identity or gender expres- sion, along with making a sexual solicitation or advance where the person making such a move is in a position to confer, grant or deny a benefit or advancement to the worker and should have known that such behaviour was unwelcome. e definition is largely consis- tent with those in the Ontario hu- man rights code, said Blackburn, but "all of the employers' exist- ing obligations with respect to workplace harassment now have to also include workplace sexual harassment. "So if you have a policy in place, which they must have, it will now have to be revisited to ensure it addresses not just broader workplace harassment but also specifically workplace sexual harassment." However, the proposed change does state: "A reasonable action taken by an employer or super- visor relating to the manage- ment and direction of workers or the workplace is not workplace harassment." at part speaks to manage- ment concerns, according to Blackburn. "ere's a recognition to the fact that not all comments from employers and managers are go- ing to be welcome or non-critical, as part of the management of the workplace. ere will be that need to address issues with employees, and that is not harassment, it's only going to these other types of vexatious comments and conduct." Greater responsibility around investigations When it comes to investigations, the proposed amendment says these should include measures and procedures for workers to report incidents of harassment to a person other than the employer or supervisor if she is the alleged harasser. e employer will also have to set out: how incidents and com- plaints of harassment will be in- vestigated and dealt with; which information will be disclosed; and how alleged victims and harassers will be informed of the results of the investigation and any correc- tive action taken. Employers would also have to conduct an investigation "into in- cidents and complaints of work- place harassment that is appropri- ate in the circumstances." is is an example of the more specific duties being proposed as "incidents and complaints" was noticeably absent in the prior act, said Blackburn. "at doesn't mean it shouldn't have been conducted as part of a policy, but there wasn't an express obligation on employers to inves- tigate, so this is (saying) they have to conduct the investigation and it also sets out certain followup steps… so that's a bit of trend in this proposed bill to more communica- tion and transparency, particularly with the complainant," he said. When these changes do be- come law, it is clear workplace in- vestigations will suddenly become much more important, according to Rubin. And since the act states "incidents and complaints," it's not necessarily exclusive to formal complaints under the employer's policy. "e folks internally who are re- sponsible for workplace investiga- tions are going to have to under- stand what triggers a workplace incident," she said. "And, second of all, the language here is 'that is appropriate in the circumstances' so, again, there's going to have to be some thought as to what kind of investigations: Is it always formal, is it informal? So, absolutely, if an employer does not now have competent internal people to do their investigations, now is really the time to add those competencies." The risk of using somebody who doesn't know how to conduct an investigation is not theoretical, said Rubin, citing case law over the past 10 years where adjudica- tors, arbitrators and judges have commented on the lack of skills of internal investigators and, as a result, their imposing liability on the employers. ird-party involvement As part of the amendments, an in- spector may also order an employ- er to conduct an investigation, at the expense of the employer, by an impartial, experienced and quali- fied person. is part is new and different, yet Bill 132 is not clear as to what those circumstances are, said Rubin, so hopefully there will be more "meat on the bone there" as the regulations are formalized. "We don't know how aggres- sively that power on the part of inspectors is going to be used — is it going to be simply reactively?" e most imaginable situation would see an employee who has made a complaint to her em- ployer but either the employer didn't respond, didn't investigate or responded appropriately, so she calls in the Ministry of Labour, which triggers an inspection, said Rubin. It's also possible ministry blitzes would lead to investiga- tions being ordered. To avoid having an independent third party come in and do the investigation, employers should have proper policies in place, said Blackburn. "Employers who don't have a very specific policy, who don't have a very specific investigation process put in place, will have to do a lot more revision than those that have more fulsome policies." Significantly, the inspectors can set the qualifications the investi- gator has to have, said Blackburn, and the employer must pay for the investigation. "It's really creating an incentive for employers to ensure that both their policies and their internal in- vestigations are done with an ap- propriate degree of diligence and thoroughness," he said, adding a breach of the duty to investigate could be sanctioned under OHSA financially, as well as exposing an employer to other types of legal action. And proper training will be re- quired for the people conducting investigations, he said. "at's an important skill set that will only be increasingly im- portant for HR professionals." e changes would also remove the limitation period for civil pro- ceedings based on sexual assault — and, in certain cases, sexual misconduct or assault. is could have implications for employers should an employee accuse a co-worker of sexual as- sault three or four years after the incident, said Rubin. ird-party investigations could cost employers HARASSMENT < pg. 1 Credit: Mark Blinch (Reuters) Former CBC personality Jian Ghomeshi at the 2014 Canadian Screen awards in Toronto. His departure from the broadcaster raised awareness around sexual harassment at work, says one lawyer, leading to stronger legislation in Ontario. "If an employer does not now have competent internal people to do their investigations, now is really the time to add those competencies."

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