Employers must provide regular updates on status of resolution
This summer, there were reams of news headlines about class-action lawsuits lodged on behalf of those who experienced workplace sexual harassment and violence. Members of the Canadian Armed Forces were awarded $800 million, workers of the Department of National Defence received $100 million and, three years after settling a sexual harassment and discrimination lawsuit with female officers for $100 million, the RCMP reached a second settlement for a further $100 million for women in non-policing roles. As such, it should come as little surprise that 2020 will see the implementation of a stand-alone federal workplace harassment and violence prevention regulation.
One of the most notable mechanisms introduced to support the principal party (previously referred to as the claimant or victim) is the right to be represented at any time during the process. This right suggests that the principal party could elect to have a lawyer, paralegal, co-worker, union rep or family member be their spokesperson. Employers should develop their own list of representatives to propose to the principal party, as this provides an opportunity to introduce a knowledgeable, constructive and otherwise competent resource into the early stages of the resolution process.
If the first stage of the resolution process fails to resolve the issue, the matter may move to conciliation. Conciliation must be agreed to by both parties, and there must be agreement on who is to facilitate the conciliation. If conciliation fails, the matter proceeds to investigation.
The principal party, the responding party (the person responsible for the violence or harassment) and the employer must unanimously agree on the person who is to act as the investigator. The employer cannot unilaterally appoint one, nor propose a list of persons, unless the list has been jointly developed with the applicable partner (the workplace safety committee). In cases where all parties cannot agree to a person within a 60-day period, one must be requested from the Minister of Employment, Workforce Development and Labour.
The proposed federal regulation specifically permits complaints to be lodged anonymously. The principal party or a third party that witnesses an occurrence — or is informed of the occurrence by the principal party or the responding party — can make an anonymous claim to the employer. The next step in resolving the occurrence depends on whether the principal party chooses to remain anonymous. If anonymity is not waived, the resolution process requires the employer and the applicable partner to jointly review the written violence and harassment risk assessment and update it. These actions are also required in cases where the principal party opts not to proceed to resolution and instead abandons the claim.
In these circumstances, resolution is achieved once the employer meets with the applicable partner (safety committee), reviews the assessment and updates it, if required. A joint review and update of the assessment must be completed within one year of receiving the initial notification of the occurrence. However, if the employer does not agree that a particular update is required, then the employer’s decision prevails. This right is given to the employer any time the regulation requires a joint outcome with the applicable partner. A record of each failed joint agreement must be kept for 10 years, along with the reasons why a joint resolution was not achieved.
Beginning on the first month after the notification of an occurrence is given, the employer or the designated recipient (a person designated by the employer to whom the notification may be given) must give the principal party and the responding party monthly updates relating to the status of the resolution.
Aggregate data relating to the resolution of the occurrences must be reported to the safety committee every six months. It is anticipated that reporting will help ensure that the workplace is properly monitored to identify hazards and that assessments are being appropriately reviewed and updated, pursuant to the data received.
A former employee has up to three months after the day their employment ended to submit a notification of an occurrence. This reality may well motivate employers to do two things more often when terminating an employee: first, carry out detailed and meaningful exit interviews when an employee resigns, and second, offer a “without prejudice” severance package in exchange for a comprehensive release that prohibits former employees from initiating further legal proceedings against the employer.
Federal workplaces covered under Part II of the Canada Labour Code will have six months after the day the regulation comes into force in 2020 to have the prescribed training and assessments in place. Following this period, new hires are required to be trained within three months. Provincially regulated employers also need to continue to pay attention to these key developments as they could very well be adopted by provincial regulators that do not yet have similar legislative requirements in effect.