Is your business in compliance with the Occupational Health and Safety Act?
The Ontario Provincial Government has made numerous harassment related amendments to the Occupational Health and Safety Act (1990) ["OHSA"] in just under a decade. In 2010, Bill 168 came into force, and more recently, there were additional amendments to the Act encompassed in Bill 132, which came into effect in 2016. Both of these bills have the potential to significantly impact employers and how they manage and address workplace harassment and workplace sexual harassment. They also include obligations that are important for employers to understand and implement as well as, information to disseminate to employees. If employers choose not to comply with the requirements, they could face a complaint to the Ministry of Labour ("MOL") and a hefty fine, or alternatively, other legal action with the possibility of damages.
The Bill 168 amendments to OHSA include workplace harassment, highlighting the public interest importance the Ontario Government placed on protecting employees from harassment at work. Workplace harassment is defined broadly as "any course of vexatious conduct or comment that is known, or ought reasonably to be known, to be unwelcome." This mirrors the definition of harassment in the Human Rights Code (1990) ["Code"]; however, OHSA provides for non-Code based harassment, meaning that it applies to any type of harassing conduct or comment that meets the definition, but is not directly tied to the protected grounds of discrimination enumerated in the Code. For a list of protected grounds, click here.
The definition of harassment establishes a subjective and objective element. The subjective test is based on the harasser's knowledge of their behaviour being unwelcome and the objective test is based on a reasonable person's point of view of whether the comment or conduct should be known to be unwelcome. This test should be relied upon to determine whether the allegations are substantiated as vexatious conduct or comment that was known or should have been known to be unwelcome to the complainant.
Employers with 5 or more employees must have a written harassment policy and must train employees on their rights and obligations as they pertain to OHSA and the related mandatory workplace policy enshrining those rights and obligations. The policy must be posted in a location and manner that is visible to employers, and it must be reviewed by the employer annually.
Employers must develop and maintain a program to implement workplace harassment policies. This program must include measures to report harassment, investigate allegations and complaints, and deal with them confidentially through a complaint handling process. Employers are required to provide education and instruction on the contents and requirements of the policy and program that is appropriate in the circumstances. While there is no requirement to assess the risks of workplace harassment (as there are with respect to workplace violence), it is advisable to consider such a process, especially for large workplaces where the risk of harassment could be higher or more prevalent.
Bill 132, as it relates to OHSA, expands on the definition of workplace harassment to include workplace sexual harassment and contains additional obligations on employers in relation to workplace harassment. For example, reasonable actions taken by an employer or supervisor with respect to the management and/or direction of workers or the workplace is not considered workplace harassment and is therefore exempt from the definition of harassment; meaning, that appropriate discipline, performance management, and/or directions will not be considered workplace harassment.
The definition of workplace sexual harassment is outlined in OHSA as follows:
(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.
Similar to the definition of workplace harassment, workplace sexual harassment is quite broad and encompasses the common understanding of sexual harassment related to sexually based comments or conduct (most typically obscene sexual comments and sexual advances), and includes additionally, harassment on the basis of sex, sexual orientation, gender identity and gender expression. OHSA's definition of sexual harassment encompasses a variety of protected grounds enshrined in the Code, expanding the mainstream understanding and definition of sexual harassment and closely mirroring the sexual harassment provisions related to housing accommodation and workplaces in the Code.
As a result of Bill 132, the workplace harassment program must now be developed and maintained in consultation with the Joint Health and Safety Committee or a health and safety representative. The program must be reviewed annually and include a means of reporting complaints of workplace harassment, how the complaint will be investigated and handled, how the employer will manage an alternate reporting mechanism, how confidentiality will be maintained during the investigation (by the employer, investigator and the parties) and how the parties will be informed of the findings and corrective action. Investigations into harassment complaints conducted by the employer must be "appropriate in the circumstances." An appropriate investigation is detailed more clearly and thoroughly in the MOL's Code of Practice that accompanied the Bill 132 amendments. For example, an employer should investigate when it knows of allegations or should know of a harassing situation in the circumstances, even if the complainant or third party reporter expresses that they do not wish to pursue the allegations or participate in an investigative process.
Employers must include procedures for employees to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser. The Code of Practice also suggests that an external investigator should be considered when the allegations raised are against a high-ranking official such as an executive, CEO or President of the company or organization.
The program must also include details regarding how the employer will obtain information about the complaint, including the fact that it will not be disclosed unless required for purposes of the investigation, taking corrective action, or as otherwise required by law. Further, it must include how the complainant and respondent will be informed of the results of the investigation, which must be in writing, and any corrective action taken as a result of the findings of the investigation. These positive obligations on the employer require that the program be developed as stated within the amendments to the Act, and for the purpose of implementing the accompanying policy.
Bill 132 also provides that OHSA Inspectors have discretion to order an employer to conduct an investigation at its own expense, that includes a written report by an impartial investigator with the appropriate knowledge, experience or qualification, as specified by the inspector. This is a broad and discretionary power and seems to suggest that the MOL can require an employer to hire an external investigator to undertake the required investigation. Clarity on this provision is not included in the Code of Practice.
LJ Human Rights Consulting are trained, skilled and experienced workplace harassment and workplace sexual harassment professionals. We are able to assist businesses and employers with impartial, fair, and thorough external investigations into harassment and sexual harassment complaints; and, can act as a third party reporting mechanism for employers. LJHRC is experienced with policy development and implementation with respect to the OHSA requirements; and, can develop and deliver educational workshops and training on OHSA related policies, procedures and best practices, including training your managers to investigate complaints of this nature and helping your employees understand their rights. Finally, we can provide consultation services on harassment related queries, investigation processes, complaint handling, best practices and any other related matter that may arise in your workplace.
PLEASE NOTE: Bill 168 amendments apply to both workplace harassment and workplace violence. For the purposes of this blog, we have focused only on the amendments that relate to workplace harassment.