■■ A requirement to conduct a
mandatory investigation “that is
appropriate in the circumstances” in
response to any and all incidents and
complaints of workplace harassment.
This does not mean that each and every
complaint will warrant a complicated and
costly investigation by a third party investigator;
however, it does place the onus on
employers to take all issues and complaints
seriously, and to invoke proper process.
Many employers are already equipped
to meet those obligations; however, to the
extent that many others are not, it’s very
important that they take steps to arrange
appropriate training for members of their
HR teams. Essentially, Bill 132 demands
that employers be equipped to evaluate
complaints, to determine the appropriate
scope of enquiry in the circumstances
and to conduct competent and objective
investigations.
Adding to that urgency is the fact that,
under the Bill 132 amendments, Ministry
of Labour inspectors now have the power
to order – on a case by case basis – that
an employer retain a third party investigator
at its own expense. In other words, if
the Ministry is concerned that an employer
cannot or will not conduct an effective investigation,
the matter will be taken out of
the employer’s hands. Likewise, if an employer
is found to have conducted a sloppy
or otherwise unsatisfactory investigation, an
inspector might order that an independent
investigator “possessing such knowledge, experience
or qualifications as are specified by
the inspector” be called in for a “re-do.”
■■ A requirement to advise both
the complainant and the alleged
harasser (unless he is not one of the
employer’s workers) of the results of the
investigation, as well as the discipline
or corrective action that is being
administered to the alleged harasser.
Although the obligation to disclose the
results of an investigation will, in many
cases, be consistent with employers’ preexisting
protocols, the requirement for
transparency regarding corrective action
almost certainly represents a significant
change for most employers. That change,
coupled with the fact that an employee
will be in a position to complain to the
Ministry of Labour about any harassment
investigation that is (or allegedly is) noncompliant
with the Bill 132 amendments,
now places added pressure on employers to
“get it right” when assigning consequences
for harassing behaviour.
■■ A requirement that employers consult
with their workplace joint health and
safety committees (or health and safety
representatives, as the case may be in
smaller workplaces) in revising their
policies and procedures to include
the new definitions and to reflect the
new obligations.
Hand-in-glove with the obligation to update
policies and procedures is a further
requirement to provide all workers with corresponding
training regarding the updates.
CONTINUING THE TREND
Bill 132 represents an important continuation
of the changes to OHSA that were
ushered in by Bill 168. Moreover, it is also
a significant new development in what is
legal words
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