In 2010, the Occupational Health and Safety Act (Ontario) was amended to include the definitions of workplace harassment and workplace violence, as well as associated requirements for employers. Prior to that, harassment fell under the Ontario Human Rights Code (OHRC) and was limited to the prohibited grounds as defined by the OHRC. However, since 2010, employees have had another avenue to bring forward concerns about workplace harassment and violence: the OH&S Act. Most recently, in September 2016, the Occupational Health and Safety Act was amended again (Bill 132) to include sexual harassment and sexual violence, with additional compliance requirements for employers and obligations for all workplace parties.    

Implications for employers

With the latest amendments to the OH&S Act, employers are reminded of their obligation to have workplace harassment and violence prevention policies updated to include provisions for sexual harassment and sexual violence. It is important that they train all employees on these policies/procedures, have procedures/protocols in place for workplace parties to bring forward complaints under the Act and conduct timely and professional investigations of these complaints. In addition, the Ministry of Labour has been given the authority to issue orders to employers to engage an external, qualified investigator to undertake the investigation of a workplace complaint at the employer’s expense. Other amendments clarify the rights of employers to manage the performance of employees without these efforts being deemed harassment.

Undertaking an investigation

Whether brought forward under the OH&S Act or the Ontario Human Rights Code, harassment and sexual harassment investigations are serious matters. They need to be dealt with professionally and with sensitivity. Employers may want to turn to external consultants to undertake an investigation on your behalf. An independent and objective investigator will be able to review the complaint and determine – through interviews, collection of data and a review of relevant documents – whether the allegations are substantiated or not. They can also provide recommendations for a full range of potential next steps such as a consideration of restorative measures.

Taking responsibility

It’s important for employers to ensure that workplaces are safe from risks that have emotional, physical and other kinds of impacts on employees. A large portion of the work our firm does to assist employers with harassment investigations is geared towards making workplaces more respectful, whether that means helping solve existing problems, developing policies or delivering training to prevent further problems in the future. Prevention and early detection/management are key.

Peter Spratt, MBA, CHRL, Q.Med, is an Organizational Effectiveness and Employee Relations professional with more than three decades of experience. He is an accomplished consultant, mediator, facilitator, and investigator, specializing in managing conflict and resolving workplace and community disputes. 

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Information is current to January 19, 2017. The information contained in this blog is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act upon such information without appropriate professional advice after a thorough examination of the particular situation.