Canadian HR Reporter

CANADIAN HR REPORTER June 13, 2016 12 NEWS RECRUITING FINANCIAL PROFESSIONALS? O er positions to over 200,000 Members Highly targeted advertising Immediate matching resume database access FOR MORE INFORMATION, cpacanada.ca/CPASource TELEPHONE•416 204 3284•EMAIL•TGardiner@cpacanada.ca 14-126a_EN_CPAsource_fullpagead_9.625x7.indd 1 1/5/2016 3:24:31 PM "With big institutions like CBC, CIBC… culture takes a long time to change. Big institutions are con- servative by nature and if you're undergoing any sort of change, whether it's implementing harass- ment programs or dealing with the engagement of your staff , it takes a long time." Certain workplaces can take a long time to change, said Ste- phen Torscher, a partner at Miller omson in Calgary, citing north- ern Alberta employers. "Some of the workplaces up there are a little bit more rough and tumble than you'd expect in a downtown Calgary offi ce and the things that are said and the things that are tolerated out there might have been par for the course and tolerable there, but not so much anymore. We're progressing as a society and that change is what's happening in all workplaces." Greater awareness could also be a factor, said Torscher. As the col- lective workforce realizes certain kinds of behaviours are no longer permissible, and there's recourse available, harassment may be re- ported more often. People are more aware of their rights and will not tolerate harass- ment anymore, said Belle Yuan, principal consultant at Strategy- wise HR in Toronto. And the Gho- meshi case opened doors to show people what is really happening. "Internally, for most organiza- tions, this has been a norm… and in light of the Ghomeshi investi- gation… people are much more in tune with, 'Oh my god, I think that happened in my workplace' or 'I think this happened to me, maybe I should start speaking up,' so that's now opened up a Pan- dora's box." Challenges for employers But it's tricky for employers, said Torscher. " e complainant can go on Facebook or Twitter or whatever and start saying a bunch of things and accusing people of doing wrong and then you see the em- ployer not really reacting to it or a bare-faced denial because they're not really in a position to address the allegations squarely and re- veal some of that information that might be confi dential." e employer has to respect the confi dentiality and privacy of the people involved, he said. "If there is an incident, it's not like they're going to publish some- thing in the newspaper saying that 'We've properly investigated this incident and it's been dealt with' or anything like that. ere's prob- ably a lot more investigations that go on that we actually don't ever hear about or know about because they've been dealt with properly or people have been satisfi ed with the result." And employers are sometimes caught between reluctant wit- nesses who do not want to fi le a formal complaint and the duty to provide procedural fairness to the employee being terminated or disciplined, said Clarence Ben- nett, partner at Stewart McKelvey in Saint John. Investigations are not easy, ac- cording to Torscher. Oftentimes, there are essentially two wit- nesses, the complainant and al- leged abuser, and that's the only evidence available. "It makes it really difficult in those circumstances, where there's just the two people, to be able to come to a fi rm conclu- sion about what happened and whether the complaint is justi- fi ed," he said. Sexual harassment is a sensitive issue, said Torscher. "You're dealing with personali- ties in the workplace and there's a lot of diff erent things that the em- ployer needs to consider and bal- ance when they're trying to con- duct a proper investigation. And... sometimes it's not a satisfactory response for one or either of the parties. And that's probably where you see, especially the complain- ants, perhaps take it to the next level by reporting it to the police or fi ling a civil suit, like we've seen with WestJet and CIBC." When an internal complaint comes in, HR typically has to act like the neutral party, said Yuan, "but really HR is not completely neutral — they have to represent management, so when employ- ees would bring forward these types of cases, a lot of times... it sort of gets sloughed off and a full investigation is not done or it's something that was ad hoc, that's maybe less objective, just to show that they have done something." at's why internal investiga- tions don't always work, she said. " ere's so much internal poli- tics and the imbalance of power internally. When you have an ex- ecutive that these allegations are made against, what do you think is going to happen when you have somebody maybe lower than the executive that's doing the investi- gation? So it's very political when it's internal, and it skews the out- come of the investigation." A lot of the people in-house don't have the right training to do these investigations, said Yuan. "We're seeing it in the courts where they are being challenged and the arbitrators or judges are basically slapping the company with a lot of damages as a result. So they see that there defi nitely is a weakness there and that's what the Bill 132 is trying to address." Bill 132 When Ontario's Bill 132, the Sexual Violence and Harassment Action Plan Act, comes into force in September — which expands the defi nition of "workplace ha- rassment" to include "workplace sexual harassment" and requires employers to investigate incidents and complaints — the most sig- nifi cant change is sexual harass- ment is both a health and safety issue and a human rights issue, said Pugen. The Ministry of Labour will also have the power to order an external person to come in and investigate, and the employer to pay for it. "If you fail to comply, the con- sequences under OHSA (the On- tario Health and Safety Act) are signifi cant — you could be pros- ecuted — whereas under human rights, that's less likely to be the case," he said. "But I don't think it's going to result in more complaints, I think it just results in employers hav- ing a specifi c duty — and now the consequences for non-compli- ance have gone up." An employer is not well-served by giving short-shift to harass- ment issues, said Pugen. "You can't sweep these issues under the rug anymore, there are too many avenues for employees to go to seek redress, it's a hot but- ton issue," he said. "Because it's such an important and newswor- thy issue and because companies are concerned about their brand, they want to get to the bottom of it immediately and quickly. I think most companies are smart enough to know, and should be sophisticated to know, that sup- pressing these types of activities or this type of complaint or issue is going to backfi re." Consequences for non-compliance rise HARASSMENT < pg. 1

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