On October 25, 2018, An Act to amend the Canada Labour Code (harassment and violence), and the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1 (the “Act”) received Royal Assent.
The Liberal government plans to bring the Act into force over the next two years. Once it comes into force, the Act will explicitly define harassment and violence in federally regulated workplaces as “any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment” and will expand the purpose of Part II of the Canada Labour Code (the “CLC”), the Occupational Health and Safety provisions, beyond accident and injury prevention to include the prevention of harassment, violence, psychological injuries and illness.
Practically speaking, the Act will impose several new procedural and substantive obligations upon employers concerning the prevention of harassment and violence in federally regulated workplaces. These new requirements are consistent with those that apply to many provincially regulated employers across Canada. Employers engaged in federal undertakings will have a duty to do the following:
- Prevent and protect against harassment and violence in the workplace.
- Investigate, record and report instances of harassment and violence. This includes incidents involving former employees if the occurrence becomes known to the employer within three months of the last date of employment, however, the Minister has the discretion to extend this time period.
- Offer support to employees affected by harassment and violence.
- Provide training to employees, supervisors and managers, with training in the prevention of harassment and violence in the workplace, specifically in relation to the new CLC obligations.
- Protect the privacy of complainants and respondents in a workplace harassment or violence investigation, by prohibiting the workplace committee, the policy committee and health and safety representative from investigating the incident, and by prohibiting the employer from providing identifying information concerning the complainants and respondents to any internal workplace committees. Instead, a separate individual in a non-supervisory role is designated to receive complaints of harassment and violence. This prevents employees from having to report workplace harassment or violence to their supervisors, which is especially important if the complaint is against the supervisor.
- Ensure employees are informed of their updated rights and obligations under the Act.
- Provide employees printed and electronic copies of Part II of the CLC, any applicable regulations, the employer’s general health and safety policy, and any other information prescribed by the regulations.
- Create an exemption to the mandatory internal complaint resolution process in Part II of the CLC, such that it will be optional for employees and former employees to make complaints through the CLC-prescribed internal complaint resolution process. If the employee or former employee avails of the internal complaint resolution process, the complaint will follow the existing process and may be referred to the Minister if it is not resolved.
It is important to note that the Act grants the government the power to make regulations and impose further obligations on employers to investigate, record and report complaints.
Begin updating workplace policies to align with new obligations under the Act
While the Act is not yet in force, federal employers should turn their eyes to their existing harassment and violence policies and consider updating them accordingly. Specifically, employers should consider incorporating the new definition of harassment and violence under the Act, setting out clear and comprehensive descriptions of their harassment and violence investigation process, and describing the preventative measures that will be implemented to reduce the likelihood of such incidents occurring. Much like their provincially regulated counterparts, federal employers should not wait until after the Act comes into force to make changes and notify their employees.
Ensure employees know what options are available to them if they wish to bring forward a complaint of violence or harassment
Employees must be informed of their rights and obligations under the Act, such that they can make an informed decision when deciding whether to bring forward a complaint of harassment or violence. Beyond simply providing employees with copies of the relevant workplace policies, employers should ensure that employees understand their rights under the Act and are able to exercise them accordingly.
Expressly prohibit retaliation for making or participating in a complaint and address the consequences of bringing forward false or vexatious complaints
Employers should draft policies that make clear that allegations of harassment and violence are taken seriously. With this aim in mind, employers should expressly prohibit employees from retaliating against an individual for bringing forward a complaint. Along similar lines, employers should also prohibit false or vexatious complaints, and ensure that employees face consequences for such misconduct.
The Act is not yet in force, but we will continue to monitor its status and provide an update regarding any further developments.
By Chetan Muram, Associate
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