By Leanne Standryk
In March 2015, Premier Kathleen Wynne released the report “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment”. The Plan was aimed at raising awareness and addressing sexual harassment and violence in the workplace, schools and the community. The Plan recommended the introduction of a new definition of sexual harassment and express requirements for Employers to investigate and address sexual harassment and violence in the workplace with the further obligation for Employers to take every reasonable effort to protect workers from harassment.
Several of the recommendations outlined in the Plan were introduced on March 8, 2016, when the Ontario Government passed Bill 132, Sexual Violence and Harassment Action Plan Act (the “Act”) aimed at preventing sexual violence, sexual harassment and domestic violence. The Act amends several pieces of existing legislation including the Occupational Health and Safety Act (the OHSA). The focus of this bulletin shall be on how the Act will impact the OHSA when Bill 132 takes effect on September 8, 2016.
The highlights of Bill 132’s amendments to the OHSA are as follows:
- Definitions of Workplace Harassment and Workplace Sexual Harassment
Bill 132 adds to OHSA’s existing definition of ‘workplace harassment’ so that it expressly includes workplace sexual harassment defined as:
(a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or
(b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.
Finally, Bill 132 also sets out that reasonable actions taken by Employers or supervisors related to the management and direction of employees or the workplace is not workplace harassment.
- Changes and Additions to Existing Employer Duties
Employers will be required to develop and maintain a program to implement the harassment policy in consultation with the workplace’s health and safety committee or representative, if any.
The policy and program must include procedures for workers to report incidents of workplace harassment to persons other than the employer or the supervisor, if the employer or supervisor is the alleged harasser. This new obligation may impose challenges to smaller workplaces where there is no human resource department or where members of the management team are relatively few.
The program and the policy must be reviewed as often as necessary but at least annually to ensure that it adequately implements the workplace harassment policy.
In addition to the new reporting measures, the Employer policy and program must also:
- Specify how workplace harassment complaints and incidents will be investigated and dealt with, including the fact that information obtained about complaints and incidents will not be disclosed unless required for the investigation or by law;
- Indicate that the victim and the alleged perpetrator are informed in writing of the results of the investigation and the corrective actions to be taken as a result of it, if any. At a bare minimum, the written program must provide for this written communication.
In addition to the foregoing, Bill 132 requires Employers to protect workers from harassment by ensuring that an investigation is conducted into incidents and complaints of workplace harassment that is “appropriate in the circumstances”. This provision certainly opens the possibility for the Ministry of Labour to consider whether or not the employer’s investigatory process was appropriate thereby lending to the potential of further litigation surrounding the “appropriateness of investigations”.
- New Powers for The Ministry of Labour
Ministry of Labour inspectors are also provided with the power to order that the investigation be redone or that an impartial third party conduct the investigation. The third party must have the necessary knowledge or qualifications, as determined by the inspector, to conduct a workplace harassment investigation at the employer’s expense.
Employers may have the right to appeal any such order which again, would lead to more litigation surrounding investigations. It is specified that reports from the impartial person also will not constitute a report respecting occupational health and safety for the purposes of 25(2) of the OHSA.
Bill 132 is effective September 8, 2016 and, accordingly, Employers are advised to review their policies and seek the necessary advice to ensure future compliance.
Leanne Standryk is a senior partner at Lancaster, Brooks & Welch and she may be contacted for advice on any Labour and Employment matter at 905-641-1551.