In 2011 employers only had to write a harassment policy and inform their workers about the policy. No other duties were imposed on employers by the Ontario Occupational Health and Safety Act (Act).
So, when an employee lodged a complaint against their employer for failing to investigate a complaint of harassment, the Ontario Labour Relations Board (OLRB) denied him on the basis that the Act does not impose a positive duty on the employer to investigate complaints of harassment [Investa Financial Services Inc and Industrial Alliance Insurance and Financial Services Inc 2011 CanLII 30897 (ON LRB)].
A few years later, the OLRB again had a similar case before them and affirmed their earlier decision saying that “…the Act places no obligation on employers to provide a harassment-free workplace or to provide any specific type of investigation or outcome of a harassment complaint”.
But, since September 8, 2016, the rules of the game have changed. The Act was amended and now employers’ responsibilities are significantly bolstered when it comes to workplace harassment. Employers can no longer simply create a harassment policy and sit on their laurels. They now have a positive duty to address harassment in the workplace on an ongoing basis.
And if you think that implementing the changes required is too much work, or you just don’t have time for it… think again! In February 2017 a company was fined $70,000 for failing to comply with Ministry of Labour orders requiring them to develop workplace harassment and violence prevention programs – $10,000 per count of non-compliance. You can read about it here.
Here’s what Ontario dentist employers need to know about the amendments and their new obligations:
Workplace Sexual Harassment
The Act now states that “workplace harassment” includes workplace sexual harassment and it defines “workplace sexual harassment” 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 [Section 1(1)]
It is also important to note that the Act also clarifies that “a reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment” [Section 1(4)].
These expanded definitions must be included in your office harassment policy.
Workplace Harassment Program
Under the new amendments, employers must now consult with their Health and Safety Representative (HSR) or Joint Health and Safety Committee (JHSC) when developing and maintaining a workplace harassment program [Section 32.0.6(1)].
Practically speaking, this means that you will have to provide the HSR or JHSC with any information relevant to the harassment program and allow them to comment on the program either verbally or in writing. Such comments must be considered in good faith and suggestions implemented, where appropriate.
Because the HSR and JHSC may not be qualified to comment regarding issues of workplace harassment, it may be wise to provide training that is relevant to ensure that the HSR or JHSC can give meaningful feedback about the program [Section 32.0.8].
Additionally, once the program is in place, employers now have an obligation to review the program at least annually to ensure it is working properly [Section 32.0.1(1)(c)]. More frequent re-visits to the program may be warranted where an investigation reveals gaps in the program.
Investigations Into Workplace Harassment
Employers now have an active (as opposed to reactive) duty to protect workers from workplace harassment by conducting investigations into “incidents” as well as “complaints” that are appropriate in the circumstances [Section 32.0.7(1)(a)] This means that if an “incident” of harassment comes to the knowledge of the dentist, that incident must be investigated regardless of whether or not there is a formal complaint made about it. You won’t be allowed to bury your head in the sand and say “no one complained, so I didn’t investigate”. As for what is “appropriate in the circumstances” – timeliness, fairness and thoroughness are all likely to be taken into consideration.
The harassment program now has to include “measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser” [Section 32.0.6(2)(b)].
Because of the imposition of these new positive duties on the employer, the Ministry of Labour investigators were also given additional powers. An investigator can now order an employer to carry out an investigation by an impartial person with specific knowledge, experience or qualifications and obtain a written report from the investigator [Section 55.3]. Such investigation will be at the expense of the employer. An “impartial person” may be internal or external, depending on the circumstances. Such an order may be made in circumstances where there is a complaint to the Ministry of Labour or where a Ministry blitz uncovers workplace problems that have not been addressed or have been inadequately addressed.
Information obtained in the course of a harassment investigation, including identifying information about individuals involved, must not be disclosed unless necessary for the purpose of investigating or taking corrective action or as required by law [Section 32.0.6(2)(d)].
The complainant and alleged harasser (if an employee) must be informed of the results of an investigation and any corrective action that has been taken as a result of the investigation [Section 32.0.7(1)(b)]. This doesn’t mean that the entire report is disclosed to the parties (especially in light of the obligation to keep information private). But it may mean that you provide a summary of the report with as much information as necessary to discharge the obligation of informing the parties about the results and corrective action.
The employer must keep reports and relevant materials for at least 1 year.
What To Do Next?
Now that you know about the changes, you not only have to advise your employees about the amendments in the law by re-writing your harassment policy and program, but you also have to implement it and re-visit it every year!
For further reading about employers’ obligations under the Act, you can read the Ministry of Labour’s Code of Practice to Address Workplace Harassment under Ontario’s Occupational Health and Safety Act which is very easy to understand and covers all of the new amendments as well as the preexisting laws.
Please note that the information provided herein should not be considered legal advice and is provided for informational and educational purposes only. If you have any questions about the OHSA, need advice about your obligations as an employer, or need help coming up with and implementing the new harassment policy, please contact us today. We are your dental legal team.