Chad Sullivan and Kathleen Nash

In June 2020, the Federal Government released the new Work Place Harassment and Violence Prevention Regulations (“Regulations”) along with Bill C-65, An Act to amend the Canada Labour Code (“Code”). The Regulations will come into force on January 1, 2021, providing employers with less than six months to prepare for their enhanced obligations.

Our previous update on the Regulations provides an overview of the Regulations and outlines what employers need to know before the Regulations come into force.

The Federal Government recently published an Interpretations, Policy, Guidelines document regarding the Regulations and the Code (“Guideline”). The Guideline addresses some of the main questions that arise regarding the respective obligations of federally regulated employers and employees under the new legislation. The Guideline is in a “Q & A” style format, providing guidance on most of the provisions in the Regulations.

The following provides a brief summary of some of the issues addressed by the Guideline. Employers should review the entire Guideline prior to updating their workplace harassment and violence policies and procedures (and whenever those policies and procedures are engaged) to ensure they are in compliance with the Regulations and the Code.

Important guidance for employers

• Broad interpretation of “work place” for the purposes of an “occurrence” – “work place” has been defined to include any place where an employee is engaged in work for the employee’s employer, including public spaces, third-party premises, and even the employee’s residence if the employee has been allowed to work from home. Notably, an “occurrence” can therefore include incidents of domestic or family violence if the employee has a “work-from-home” agreement with their employer.
• The employer’s decision prevails on joint matters – the employer must reasonably attempt to agree on any joint matters; however, if the employer and the policy committee, the work place committee or the health and safety representative are unable to agree, the employer’s decision with respect to joint matters will prevail. If no agreement is reached, the employer must record their decision and the reason for the decision.
• External factors to be considered when conducting the workplace assessment – includes factors such as working with customers or members of the public, family or domestic violence, or working with third party workers.
• Identifying risk factors – a sample tool to assist in identifying risk factors that contribute to harassment and violence in the work place is provided within the Guideline. Some examples of risk factors are identified under the following categories: client/third party characteristics; physical work environment; work activity/culture; job factors; demographics of employees; and other external or internal factors.
• Training – employers must provide workplace harassment and violence training to employees (including interns and students), the designated recipient, and the employer (including managers, directors, business owners, executives, or anyone else who has employer duties under the Regulations).
• Contact with the responding party – as part of the resolution process, the employer or designated recipient should only contact the responding party if the principal party agrees or if the principal party chooses to proceed with conciliation and/or an investigation.

Important guidance for employees

• Deadline for providing notice of an occurrence to former employer – employees must provide notice of an occurrence to a former employer within three-months after their employment ended unless the employee was unable to do so due to trauma incurred as a result of the occurrence or a health condition. Employees must provide documentation to substantiate a claim that they were unable to provide notice of an occurrence to a former employer within the three-month time period after their employment ended. Such documentation can include, but is not limited to: a current note from health practitioner, social worker, or other identified person; a police report or restraining order; or a statutory declaration.
• Obligation to participate in a negotiated resolution before engaging in an investigation – the principal party and the employer or designated recipient must make every reasonable effort to resolve the occurrence before the matter is referred to an investigator.
• Representation – during the resolution process, a principal party and a responding party may be represented by: a union representative; a colleague; a spouse/partner; family member; or a friend. The same person cannot represent both the principal party and the responding party.

Other issues addressed

In addition to the issues addressed above, the Guideline also provides the following:

• A review of the Internal Complaint Resolution Process outlined in the Code and the Regulations;
• The purpose of the initial workplace assessment, the three-year review of the assessment, the review and update of the workplace assessment, and the initial review of an occurrence;
• Clarification of a “negotiated resolution”;
• Clarification that a negotiated resolution, conciliation and an investigation can run as parallel processes;
• The suspension of an investigation to engage in negotiated resolution or conciliation would not extend the one year time limit to complete the resolution process;
• The process which must be followed by the principal party if the principal party is dissatisfied with the results of an investigation;
• When a resolution process is considered complete;
• Information that needs to be included in monthly status updates;
• Examples of harassment and violence;
• Examples of preventative measures which may be implemented;
• The difference between “designated recipient” in s. 10(2)(e)(i) of the Regulations and “person who is designated” in s. 10(2)(k) of the Regulations;
• Guidance on developing and implementing emergency procedures; and
• Examples of other support services that an employer must provide information to employees about.

This article is provided for general information only. If you have any questions about the above, please contact a member of our Labour and Employment group.

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