Part 2 of our series on workplace investigations focused on the recent amendments made to the Occupational Health and Safety Act (the “OHSA”) and Limitations Act by Bill 132, An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters (“Bill 132”). In Part 3, the final instalment in our series, we will take a closer look at the Code of Practice to Address Workplace Harassment (“Code of Practice”) developed by the Ministry of Labour and recently released to the public.
What is the Code of Practice?
The Code of Practice was designed by the Ministry of Labour to help employers meet their occupational health and safety obligations under Bill 132. The Code of Practice is divided into four parts, each containing “General Information” and “Practice” sections that interpret specific provisions under the OHSA. “General Information” outlines the Ministry of Labour’s interpretation of the OHSA provisions relating to that part, and the Practice section explains the Ministry of Labour’s preferred approach to compliance with those provisions.
While fully implementing the Code of Practice would ensure that an employer is compliant with the entire range of workplace harassment provisions under the OHSA, following the requirements of the Code of Practice is by no means the only way employers can meet their obligations. An employer may wish to implement the Code of Practice wholesale, or adapt the recommendations to better suit their unique operational needs. Notably, failure to comply with all or part of the Code of Practice will not be considered a breach of the OHSA. However, employers should be aware that, when implementing a particular part of the Code of Practice, they need to adhere to each requirement set out in the relevant Practice section in order to be considered compliant with respect to the particular part.
What is in the Code of Practice?
The following is a brief explanation of each Part contained in the Code of Practice:
Part One: Workplace Harassment Policy
Every employer covered by the OHSA must have a workplace harassment policy. As per the Code of Practice, the policy must include the definition of workplace harassment and workplace sexual harassment under the OHSA, and may also include examples of such behaviours including bullying, displaying offensive pictures, leering or isolating workers because of gender identity. The Practice requirements direct employers to include in their workplace harassment policies, statements that encourage workers to report workplace harassment and a commitment to not penalize workers for reporting an incident or participating in an investigation.
Part Two: Workplace Harassment Program
While all employers covered by the OHSA must develop workplace harassment programs that outline how their workplace harassment policies will be given effect, the Code of Practice details robust reporting, investigation, recordkeeping and consultation requirements that each program must incorporate. The Practice requirements specify that the workplace harassment program must include a procedure to report incidents of harassment, including the proper person to receive a complaint of harassment, and the person to receive a complaint of harassment if the complainant alleges the employer or supervisor is the alleged harasser.
Part Two also suggests potential corrective measures that an employer may take if workplace harassment is substantiated, including requiring an apology, education, shift or job transfers, and termination. It also calls on employers to consider service delivery modifications or refusals when harassers are not workers of the employer.
Part Three: Employer’s Duties Concerning Workplace Harassment
This Part provides some clarity as to what the Ministry of Labour considers to be an “appropriate” investigation, as referenced in the OHSA. Appropriate investigations will be of sufficient scope and require the employer to ensure that reasonable efforts are made to interview its workers and third parties both thoroughly and separately. Employers following the Code of Practice will have 90 days from the date of the incident or complaint to complete an investigation, and ten days from the conclusion of the investigation to communicate its results and any consequences arising from it. Part Three also indicates that an “appropriate” investigation is objective. Objectivity is achieved by ensuring the investigator is neither directly involved in the incident or complaint, nor under the direct control of the alleged harasser.
Part Four: Providing Information and Instruction on a Workplace Harassment Policy and Program
This Part of the Code of Practice outlines the Ministry of Labour’s expectations as to how the employer will communicate information and instruction on all aspects of its workplace harassment program and policy to workers. Information and instruction, according to the Code of Practice, must cover what is and is not considered workplace harassment, how to recognize harassment, and how and to whom workers should report workplace harassment. The Practice requirements also require the employer to explain how it will investigate and deal with workplace harassment, including how the employer will report the results of any investigation to the alleged harassee and, if a worker, the alleged harasser.
What Does the Code of Practice Mean for Employers?
As noted above, the Ministry of Labour’s Code of Practice outlines particular practices that guide employers in meeting their obligations under the OHSA. Notably, the Code of Practice reads in additional requirements that are not explicitly set out in Bill 132. For instance, the 90-day window to complete an investigation, the commitment to explain the consequences, if any, resulting from an investigation within 10 days of its conclusion, and the requirement to commit to a particular seven-step investigatory process, are found within the Code of Practice but not explicitly within the OHSA.
As you may recall from our previous posts, Ministry of Labour inspectors have expanded powers under Bill 132 to order an employer to conduct an external investigation at the employer’s expense. The Code of Practice does not specify the circumstances in which an inspector may make such an order. However, it is probable that Ministry of Labour inspectors may use the requirements under the Code of Practice as a basis for their determinations.
This blog is provided as information and a summary of workplace legal issues.
This information is not intended as legal advice.
