Work Place Harassment and Violence Prevention (HVP) - 943-1-IPG-104

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List of abbreviations

The Code
Canada Labour Code
The Act
The Budget Implementation Act, 2017, No. 1
The Regulations
Work Place Harassment and Violence Prevention Regulations
IPG
Interpretations, Policy, Guidelines
ICRP
Internal Complaint Resolution Process
HVP
Harassment and Violence Prevention

Introduction to Bill C-65 and the Work Place Harassment and Violence Prevention Regulations

Issue

Incidents of harassment and violence, including sexual harassment and sexual violence, continue to occur in federally regulated work places, despite the following progress:

  • progress in raising employment and health and safety standards in Canada, and
  • the existing provisions that offer protection to employees under the Canada Labour Code (the Code)

Many employees who have experienced harassment and violence in the workplace do not report it for the following reasons:

  • fear of retribution
  • lack of support, or
  • a belief that what they have experienced does not substantiate a complaint

The previous legal framework was fragmented and did not adequately address occurrences of sexual harassment and sexual violence. In response to these issues, the Government of Canada committed to taking action to ensure that federal work places are free from harassment and violence. As such, the Government of Canada and introduced the following in the House of Commons in 2017:

  • Bill C-65, An Act to amend the Canada Labour Code (harassment and violence)
  • the Parliamentary Employment and Staff Relations Act, and
  • the Budget Implementation Act, 2017, No. 1 (the Act)

Background

The Act, which received Royal Assent in October 2018, introduces a number of amendments to the Code to strengthen the existing framework for harassment and violence prevention. This includes sexual harassment and sexual violence, in federally regulated work places. As part of the amendments to the Code, Part XX of the Canada Occupational Health and Safety Regulations will be repealed. It will be replaced with the Work Place Harassment and Violence Prevention Regulations (the Regulations). The Regulations include provisions to prevent harassment and violence through:

  • a comprehensive prevention policy
  • training
  • a resolution process that provides multiple options for seeking resolution, and
  • improved data collection

Scope

This Interpretations, Policy, Guidelines (IPG) document seeks to address some of the main questions that arise from federally regulated employers and employees regarding employer and employee obligations under the Code and Regulations. In particular this IPG seeks to address questions with respect to occurrences of harassment and violence in the workplace.

Nothing in the Regulations prevents an employer from establishing and following their own procedures in addition to those prescribed by the Regulations to deal with harassment and violence.

General employee protections

Section 147 of the Code prohibits employers from taking, or threatening to take, any punitive or disciplinary action against employees who have acted in accordance with the Code and associated Regulations. If you, as an employee, believe your employer has violated this provision, you may notify your designated recipient or appropriate personnel in your organization (such as someone in the Human Resources department). If this is not successful, under section 133 of the Code you may file a complaint with the appropriate board, as applicable, such as:

  • the Canada Industrial Relations Board, or
  • the Federal Public Sector Labour Relations and Employment Board, as applicable

Work Place Harassment and Violence Prevention Regulations

Section 1

This section addresses questions concerning section 1 of the Regulations.

Question 1

Can an “occurrence” of harassment and violence include incidents that happen outside of the employer provided work place?

Guidance

“Occurrence” is defined in the Regulations as: “… an occurrence of harassment and violence in the work place”.

However, “work place” is defined in the Code as, “…any place where an employee is engaged in work for the employee’s employer.” Therefore, an employee’s “work place” is not limited to only the building and facilities that have been provided to them by their employer. Instead, an employee’s workplace follows them wherever they are performing work for their employer. An employee’s work place can include public spaces, third-party premises, and even the employee’s residence if the employer has allowed them to work-from-home.

Given this interpretation of “work place,” if you are exposed to harassment and violence at any location, while performing work for your employer, this would constitute an “occurrence” of harassment and violence under the Regulations. This includes incidents that arise out of or are linked with employment, such as:

  • incidents while on travel status, or
  • after work functions organized by the employer

Question 2

Does the term “occurrence” include an incident of family or domestic violence?

Guidance

An “occurrence” can include an incident of domestic or family violence that takes place in either:

  • the workplace your employer provided for you, or
  • in your home if you have a “work-from-home” agreement with your employer

However, if your employer is made aware of an incident of domestic or family violence that took place in the following, your employer is encouraged to address the incident in order to prevent it from becoming an occurrence in the future:

  • in your home that is not subject to a “work-from-home” agreement, or
  • in any other location that is not a work place

Section 2

This section addresses questions concerning section 2 of the Regulations.

Question 1

What are the employer’s obligations when the employer and the policy committee, the work place committee or the health and safety representative are unable to agree on a joint matter that is required by the Regulations to be done jointly by them?

Guidance

The employer’s decision prevails in joint matters if an agreement cannot be reached. However, the employer must reasonably attempt to agree on any joint matter that is required by the Regulations. In addition, paragraph 35(1) (d) of the Regulations requires employers to record their decision and the reason for that decision for each instance where the following parties are unable to agree on a matter that is required by the Regulations to be done jointly by them:

  • the employer and the policy committee
  • the work place committee, or
  • the health and safety representative

In addition, subsection 35(2) of the Regulations requires employers to keep these records for a period of 10 years. It also requires employers make them available to the Labour Program if requested.

Section 3

This section addresses questions concerning section 3 of the Regulations.

Question 1

How can you, as a former employee, demonstrate in your request to the Labour Program for an extension to the 3-month time period after your employment ended, that you were unable to notify your employer of an occurrence of harassment and violence due to:

  • trauma incurred as a result of the occurrence, or
  • a health condition

Guidance

To substantiate your claim that you were unable to provide a notice of an occurrence to your former employer within the 3-month time period after your employment ended, due to the trauma you incurred from the occurrence, you must provide the Labour Program with documentation such as, but not limited to:

  • a current note or report from a social worker, counselor, domestic violence specialist organization (for example, shelter, domestic violence crisis line, counselling service, etc.), physician, nurse practitioner, or other health practitioner such as a psychologist, or psychiatrist
  • evidence that you stayed at a shelter
  • a statutory declaration, sworn before a notary public or other authorized individual
  • a police report, or
  • a restraining order

To substantiate your claim that you were unable to provide a notice of an occurrence to your former employer within the 3-month time period after your employment ended, due to a health condition, you must provide the Labour Program with documentation such as, but not limited to:

  • a current report from a physician, nurse practitioner, or other health care practitioner, or
  • a statutory declaration, sworn before a notary public or other authorized individual

Section 4

This section addresses questions concerning section 4 of the Regulations.

Question 1

What is meant by “a complaint under subsection 127.1(1) of the Act” in section 4 of the Regulations?

Guidance

In this IPG, the term “complaint” refers to an allegation by you, as an employee, that your employer has failed to fulfill their duties under the Code or the Regulations relating to a notice of an occurrence of harassment and violence. If you experience an occurrence of harassment and violence, you must first submit a “notice of an occurrence” to your employer or designated recipient. If you believe your employer or designated recipient has failed to comply with the Code or Regulations when responding to this notice, you must follow the amended Internal Complaint Resolution Process (ICRP) that came into force in 2021, outlined below:

  1. you must notify your supervisor, or the person who is designated in the Harassment and Violence Prevention (HVP) Policy [see paragraph 10(2)(k) of the Regulations], of the contravention of the Code or Regulations as required by subsection 127.1(1.1) of the Code
  2. you must attempt to resolve the complaint with your supervisor, or the person who is designated in the HVP Policy, as soon as possible as required by subsection 127.1(2) of the Code, and
  3. if the matter is not resolved, you can refer the complaint to the Labour Program as outlined at paragraph 127.1(8) (d) of the Code. However, the Labour Program’s role is not to make a determination as to whether the occurrence is founded. The Labour Program’s role is to ensure that the workplace parties comply with the requirements of the resolution process outlined in the Regulations

The list below describes the amended ICRP related to the employer’s response to a notice of occurrence of harassment and violence:

  • employee submits notice of occurrence to employer or designated recipient (Subsection 15 (1) of the Regulations)
  • employer contravenes the Code or Regulations
  • employee submits complaint of a contravention of the Code or the Regulations to their supervisor or the person designated in the Harassment and Violence policy (127.1 (1.1) of the Code and 10(2)(k) of the Regulations)
  • employee and the supervisor or person designated in Harassment and Violence policy try to resolve the complaint between themselves as soon as possible (127.1(2) of the Code)
  • if the complaint is unresolved employee can submit a complaint to the Labour Program (127.1(8)(d) of the Code)

Employees and employers must follow the ICRP outlined at subsection 127.1(3)-127.1(8)(a)-(c) of the Code, for all other alleged contraventions of the Code or Regulations, such as:

  • failure to develop a workplace harassment and violence prevention policy, or
  • failure to train workers on harassment and violence

Section 5

This section addresses questions concerning section 5 of the Regulations.

Question 1

What kind of external risk factors do you, as an employer, have to take into consideration when conducting the workplace assessment with the applicable partner?

Guidance

Some examples of external risk factors your employees may be exposed to include:

  • working with customers
  • working or interacting with members of the public, especially while working alone or at night
  • family or domestic violence, such as:
    • repeatedly phoning or emailing the employee to interfere with them while at work
    • showing up at the employee’s workplace and pestering co-workers with questions about the employee (such as where is she/he, who is she/he with, when will she/he be back, etc.)
  • working with third party workers such as contractors or sub-contractors, or
  • working with other third parties not listed above

Question 2

What is the purpose of the initial workplace assessment referenced at 5(1) in the Regulations?

Guidance

The purpose of the initial workplace assessment is to:

  • identify risk factors that contribute to harassment and violence in the workplace, and
  • to develop preventive measures to mitigate the risk of harassment and violence in the workplace

For examples of risk factors, see Section 8 in this IPG.

Question 3

How can you, as an employer, and the applicable partner conduct the workplace assessment?

Guidance

It is up to you and the applicable partner to decide how to conduct the workplace assessment. Access the sample tool to assist you with identifying risk factors that contribute to harassment and violence in the work place.

Other aspects of a workplace assessment may include:

  • employee and management questionnaires, or surveys
  • employee and management interviews, including exit interviews
  • physical inspections of workplaces
  • internal incident/complaint metrics
  • assessments/reviews of past government and employer reports including human rights reports
  • studies and tests that relate to the health and safety of employees, or
  • assessments done by qualified Occupational Health and Safety professionals or security professionals where appropriate

Question 4

What is the purpose of the 3-year review of the workplace assessment required at subsection 5(3) of the Regulations?

Guidance

The Regulations require at subsection 5(3) for the employer to conduct a review and, if necessary, update of the workplace assessment with the applicable partner once every 3 years.

The purpose of this 3-year review is to ensure that:

  • the risk factors that were identified in the initial assessment are still applicable
  • any new risk factors that contribute to harassment and violence in the workplace have been correctly identified, and
  • the preventive measures in place are effective at adequately mitigating the risk of harassment and violence in the workplace

For the 3-year review, the employer and applicable partner should take into consideration all reports, studies, data and new information that may assist with:

  • the identification of new risk factors, and
  • the development of adequate preventive measures

Section 6

This section addresses questions concerning paragraph 6(1) (a) of the Regulations.

Question 1

What is the purpose of the review and update of the workplace assessment?

Guidance

Subsection 6(1) of the Regulations requires employers to conduct a review and, if necessary, update of the workplace assessment with the workplace committee or health and safety representative, whenever a notice of an occurrence is provided under subsection 15(1) and:

  • the principal party ends the resolution process but the occurrence is not resolved, or
  • the responding party to an occurrence is a third party (not an employee or the employer).

The purpose of this review and update of the workplace assessment is not to determine if the notice of occurrence is founded, but instead it is to:

  • identify any risk factors that may have been overlooked when the initial workplace assessment was conducted that may have led to the occurrence
  • assess whether the preventative measures in place adequately mitigate and minimize the risk of harassment and violence in the workplace, and
  • develop new preventative measures to eliminate or minimize the risk of a similar occurrence if the current preventive measures are inadequate

Question 2

How does an employer and workplace committee or health and safety representative conduct the joint review and update of the workplace assessment in a situation where the occurrence is not resolved but the principal party ends the resolution process?

Guidance

The employer and workplace committee or health and safety representative should rely on the information already provided to the employer or designated recipient. As well, the employer and workplace committee or health and safety representative should consider if there are any:

  • systemic issues (for example, systemic racism, systemic sexism, etc.)
  • patterns of behaviour, and
  • barriers to resolving the occurrence

For example, the employer should consider other reviews and updates of the workplace assessment related to notices that were received in the past.

The employer or designated recipient must ensure that the information provided to the workplace committee or health and safety representative does not disclose the identity of the person(s) involved in the occurrence, unless those person(s) consent to their identity being disclosed.

Question 3

How does an employer and workplace committee or health and safety representative conduct the joint review and update of the workplace assessment in a situation where:

  • the principal party has not ended the resolution process, but
  • the responding party is a third party

Guidance

The employer or designated recipient should obtain as much information as possible about the occurrence from the principal party and any witnesses. They should provide this information to the workplace committee or health and safety representative without disclosing the identity of the person(s) involved in the occurrence unless they consent to their identities being disclosed. As well, the employer and workplace committee or health and safety representative should consider if there are any:

  • systemic issues
  • patterns of behaviour, and
  • barriers to resolving the occurrence

This process may involve interviewing the principal party and witnesses, considering other reviews and/or updates of the workplace assessment related to notices that were received in the past. It may also involve consulting with specialists as appropriate (such as security specialists, anti-racism specialists, etc.).

Section 8

This section addresses questions concerning section 8 of the Regulations.

Question 1

What are some examples of risk factors that contribute to work place harassment and violence?

Guidance

There are various risk factors that can contribute to workplace harassment and violence. Some of these risk factors could include: client characteristics, physical work environment, work activity/culture, job factors, and other external factors. Below are examples of some of these risk factors.

Client (Third Party) characteristics

Working with clients that exhibit certain characteristics can put employees at greater risk of harassment and violence. This can include working with:

  • members of the public who are frustrated with the system, in shock, or angry for example, clients (or their relatives) who may lash out at the closest person
  • clients who have a history of violence
  • clients who are unable to control their behavior because of mental health conditions, emotional disorders, or a brain injury (such as resulting from a concussion, etc.)
  • clients who have racist, sexist, homophobic, transphobic, ableist, xenophobic, Islamophobic, or otherwise discriminatory attitudes and/or behavior
  • clients who may be under the influence of drugs or alcohol

Physical work environment

Certain work environments and workplace designs can result in additional risks that may lead to harassment and violence. This can include:

  • working alone, in small numbers or in isolated or low-traffic areas (for example, isolated reception area, washrooms, storage areas, utility rooms)
  • working in community-based settings (for example, home visitors)
  • having a mobile workplace
  • working in an area that has poor visibility of clients
  • working in an area that is cramped, requiring employees to work in close proximity to other employees or clients
  • working in an environment with high noise levels
  • working without required personal protective equipment

Work activity/culture:

  • working with the public
  • handling money, prescription medication or items of significant value
  • working with unstable or volatile persons (for instance, criminal justice system employees who work with inmates)
  • working on premises where alcohol is served
  • working in an environment that tolerates or promotes racist, sexist, homophobic, ableist, or otherwise discriminatory attitudes and behaviours
  • working in an environment that is not diverse or there are very few persons from groups covered under human rights legislation, and
  • working in an environment where power is misused or abused

Job factors

Aspects specific to a job, such as the mental and physical demands of the job, can result in additional hazards that may lead to harassment and violence. This can include, working in an environment where there is:

  • limited control over how work is done
  • excessive workload or inadequate resources to complete work
  • unreasonable or tight deadlines leading to high stress
  • confusing, conflicting or unclear job or roles
  • limited job security
  • limited or inadequate training and resources;
  • working during periods of intense organizational change (for example, strikes, privatization, restructuring, downsizing), and
  • any other job factors that can lead to an increased risk of harassment and violence

Other external or internal factors

Other external factors that can result in harassment and violence include:

  • Family or domestic violence, such as a family member or (ex) partner:
    • threatening an employee or co-workers either verbally or over the phone/email
    • stalking the employee
    • verbally abusing the employee or co-workers
    • destroying the employee or organization’s property
    • physically harming the employee and/or co-workers
    • inadequate training on harassment and violence prevention, including the employer’s workplace harassment and violence prevention policy

Demographics of employees

The DV at Work website contains a comprehensive set of tools to help organizations understand, identify and address risks of domestic or family violence such as:

  • a Risk Screening tool
  • a Workplace Safety Planning template, and
  • connections to experts

Section 9

This section addresses questions concerning section 9 of the Regulations.

Question 1

What are some examples of preventive measures that mitigate the risk of harassment and violence in the workplace?

Guidance

Some preventive measures that mitigate the risk of harassment and violence in the workplace can include any of the following:

  • workplace training
  • workplace design, and
  • administrative practices

Workplace training for employers and employees on:

  • civility, respect and how to recognize, prevent and respond to harassment and violence in the workplace
  • appropriate use of authority
  • domestic violence and how it can contribute to harassment and violence in the work place, available through the DV at Work website
  • how to de-escalate conflict
  • how to report occurrences of harassment and violence when they are witnessed and encourage employees not to be a bystander when they witness an occurrence, and
  • recourse mechanisms available for employees who feel they have been exposed to harassment and violence
  • discrimination on the basis of human rights grounds

Workplace design:

  • position office furniture/service counter to keep the employee closer to the exit than the client
  • install surveillance cameras throughout public spaces in the workplace
  • install physical barriers such as pass-through windows or bulletproof enclosures
  • control access to all or parts of the building through keys or coded cards
  • minimize the number of entrances to the workplace
  • use adequate exterior lighting near entrances and around the workplace

Administrative practices:

  • include employees, as much as possible, in decisions that affect their working environment and conditions
  • ensure performance evaluation process is fair and transparent
  • conduct regular “pulse check” with employees on workplace issues such as: workplace stress, workload and conflict
  • consult with human rights experts on any potential issues with administrative practices
  • introduce a “buddy system” for employees who work in isolated or unsafe areas
  • have employees who work off-site prepare daily work plans so their locations and times are known
  • identify a designated contact and back-up contact at the office
  • use electronic payment system
  • ensure firearms, tools, opiates, drugs, and other valuables are safely stored
  • vary the time of day when cash registers are emptied or reduced

Visit the Canadian Centre for Occupational Health and Safety to find more resources on preventative measures including:

Section 10

This section addresses questions concerning subparagraph 10(2)(e)(i) and paragraph 10(2)(k) of the Regulations.

Question 1

What is the difference between the “designated recipient” cited at subparagraph 10(2)(e)(i) of the Regulations and the “person who is designated” cited at paragraph 10(2)(k) of the Regulations?

Guidance

The “designated recipient” cited at 10(2)(e)(i) of the Regulations is the individual to whom you as the principal party or witness can submit a notice of an occurrence regarding an occurrence of harassment and violence in a workplace.

The “person who is designated” cited at 10(2)(k) of the Regulations is the person to whom you, as an employee, can submit a complaint alleging your employer’s failure to fulfill the requirements of the Regulations or Code relating to a notice of an occurrence of harassment and violence.

For more information on this issue, see Section 4 and Section 14 of this IPG.

Question 2

Can the “person who is designated” referenced at 10(2)(k) of the Regulations be the same person who is acting as the designated recipient referenced at 10(2)(e)(i) of the Regulations?

Guidance

Yes, the “person who is designated” referenced at 10(2)(k) of the Regulations can be the same person who acts as the “designated recipient” referenced at 10(2)(e)(i) of the Regulations.  

Section 11

This section addresses questions concerning section 11 of the Regulations.

Question 1

What should employers and their applicable partners take into consideration when developing and implementing emergency procedures to deal with an occurrence or threat of an occurrence that poses an immediate danger to the health and safety of an employee?

Guidance

Employers and their applicable partners should take into consideration any of the following occurrence(s) or threats of occurrence(s) that may make their way into the workplace:

  • an (ex)partner or family member of an employee, a member of the public, or other third party assaulting, stalking, or threatening (either verbally or over text, e-mail, social media, etc.) to harm an employee outside or inside of the workplace
  • a verbally or physically violent person
  • a bomb threat, or
  • an active shooter

Section 12

This section addresses questions concerning section 12 of the Regulations.

Question 1

Who is required to take the training outlined at section 12 of the Regulations?

Guidance

Employers are required by subsection 12(1) of the Regulations to provide workplace harassment and violence training to:

  • all employees (including interns and students subject to subsection 123(3) of the Canada Labour Code)
  • the designated recipient; and
  • the employer (supervisors, managers, directors, leaders, executives, business owners, or anyone else who has responsibility fulfilling the employer duties under the Regulations)

Section 13

This section addresses questions concerning section 13 of the Regulations.

Question 1

What are examples of “other support services” that your employer must provide information to you about?

Guidance

Examples of other support services may include:

  • employee and family assistance services
  • doctors, psychologists and psychiatric services
  • counselling services, including for problematic substance use
  • sexual assault services
  • shelters
  • domestic violence crisis line and other supports/resources
  • sexual assault crisis unit/line
  • suicide crisis line; and
  • National Service Provider Network (such as calling 211 or visiting 211 website)

Section 14

This section addresses questions concerning section 14 of the Regulations.

Question 1

Who can act as the designated recipient to receive a notice of an occurrence of harassment and violence?

Guidance

The Regulations allow employers to select either a person or a work unit to act as the designated recipient. The person or work unit does not need to be an employee in the work place. For example, the designated recipient could be:

  • an Elder in the community, or
  • an association or third party organization that has been hired to fulfill the role of a designated recipient

A work unit could refer to a group of people, such as the Human Resources department, the Labour Relations department, etc.

Employers should consider the following when choosing the designated recipient:

  • the person or work unit should have no direct personal or working relationship with any of the parties involved and no personal interest in the outcome of the matter, and
  • the person or work unit should be able to protect the confidentiality and privacy of the matter as required by the Regulations

Section 19

This section addresses questions concerning section 19 of the Regulations.

Question 1

What is the purpose of the initial review at section 19 of the Regulations?

Guidance

The purpose of the initial review at section 19 of the Regulations is for the employer or designated recipient to determine if the notice of occurrence contains the information required at section 16 of the Regulations. If the notice does not contain all of the information required by section 16, the employer or designated recipient should give the principal party or witness the opportunity to provide the missing information.

However, if the notice does not contain sufficient information to allow the identity of the principal party to be determined, an employer is:

  • not required to take further action to resolve the occurrence, and
  • may therefore deem the occurrence resolved

Section 20 to 22

This section addresses questions concerning sections 20 to 22 of the Regulations.

Question 1

Who can represent the principal party or responding party during the resolution process, as referenced at subsections 20(d) and 22(d) of the Regulations?

Guidance

A principal and responding party may be represented by the following individuals during the resolution process (not an exhaustive list):

  • a union representative
  • a colleague
  • a spouse/partner
  • a family member, or
  • a friend

However, to avoid a conflict of interest, the same person cannot represent both a principal party and a responding party.

If you, as either the principal or responding party, wishes to be represented during the resolution process, you must inform your employer or designated recipient of this decision as soon as possible. You may choose to stop being represented, by informing your employer or designated recipient of this decision. Further, you may change the person you wish to represent you at any time but must inform you employer of any such change.

Question 2

What is meant by “represented” in paragraphs 20(d) and 22(d) of the Regulations?

Guidance

The representative designated by you, as either the principal or responding party, can provide advice and guidance to you on any matters they feel are relevant. In addition, the representative may be able to speak on your behalf but only regarding matters related to the administration of the resolution process, such as:

  • scheduling meetings or interviews, and
  • receiving updates on the status of the resolution process

You will still be required to personally provide the following, during conciliation or the investigation:

  • information about the occurrence, and
  • respond to questions regarding the occurrence during negotiated resolution

Alternatively, the representative may accompany you solely for the purposes of providing emotional support.

Question 3

If you report to your employer an incident of family or domestic violence that happens either inside or outside of the workplace, what measures can your employer take?

Guidance

For all incidents of family or domestic violence that employers are made aware of, the employer should conduct a Risk Screening, and develop a Workplace Safety Plan if needed. This is to prevent increased risk to the victim and others in the workplace. The employer should also provide the victim with referrals for internal and external support resources. If the incident occurred in the workplace (and therefore meets the definition of an occurrence) the employer must also follow the process laid out in the Regulations at sections 19 to 34.

Visit the Risk Screening tool, sample Workplace Safety Plan, and external resources for more information.

Question 4

When does the employer or designated recipient need to contact the responding party as part of the resolution process?

Guidance

During negotiated resolution, employer or designated recipient should only contact the responding party if the principal party agrees that it is appropriate. However, the responding party must be contacted if the principal party chooses to proceed with conciliation and/or an investigation.

Section 23

This section addresses questions concerning section 23 of the Regulations.

Question 1

What is negotiated resolution?

Guidance

Negotiated resolution is a form of informal resolution in which you, as the principal party, meets (either virtually or in-person) with the employer or designated recipient to:

  • discuss the occurrence
  • clarify the information that was submitted in the notice of an occurrence, and
  • attempt to reach resolution

Question 2

Is it mandatory for you, as the principal party, to participate in negotiated resolution before engaging in an investigation?

Guidance

Yes, you and the employer or designated recipient, (as well as the responding party if they have been contacted), must make every reasonable effort to resolve the occurrence before the matter is referred to an investigator.

Specifically, at a minimum, you must review the incident with your employer or designated recipient. You must attempt to jointly determine if the incident meets the definition of an occurrence as required by subsection 23(2) of the Regulations. In addition, the employer should seek clarification, if necessary, regarding:

  • the details of the occurrence, and
  • what you are seeking in terms of resolution

However, if despite the above efforts, you:

  • believe the incident meets the definition of an occurrence
  • do not consider the occurrence resolved; and
  • request an investigation

Then an investigation must be carried out. This requirement applies whether or not the employer believes all parties have made all reasonable efforts to resolve the occurrence.

Question 3

Concerning subsection 23(2) of the Regulations, what happens if you, as the principal party, and your employer or the designated recipient cannot agree on whether the occurrence is an action, conduct or comment that is harassment and violence as defined in subsection 122(1) of the Act?

Guidance

It might happen that you and your employer or designated recipient cannot jointly agree on whether an occurrence is an action, conduct or comment that is harassment and violence as defined in subsection 122(1) of the Act. If this is the case, and you wish to proceed with the resolution process, then your employer or designated recipient must follow the resolution process chosen by you, either:

  • negotiated resolution
  • conciliation (if the responding party agrees), and/or
  • an investigation

Question 4

What is the difference between the initial review at subsection 19(1) and the joint determination at subsection 23(3)?

Guidance

The purpose of the initial review at subsection 19(1) is for the employer or designated recipient to determine whether the notice of occurrence contains all of the information that is required under section 16 of the Regulations. It also seeks to eliminate any notices that do not contain the name of the principal party or otherwise allow the identity of the principal party to be determined.

The purpose of the joint determination at subsection 23(3) is for the employer to review the content of the notice of occurrence with the principal party. This is done in order to determine if the occurrence, if accepted as true, meets the definition of harassment and violence, as defined at subsection 122(1) of the Act.

Section 24

This section addresses questions concerning section 24 of the Regulations.

Question 1

Can a principal and responding party engage in negotiated resolution or conciliation while an investigation is ongoing?

Guidance

Yes, the Regulations allow for negotiated resolution, conciliation and an investigation to run as parallel processes. However, once the investigator’s report is provided to the employer, the occurrence can no longer be resolved through negotiated resolution or conciliation.

The Regulations allow the principal party the flexibility to pursue multiple parallel avenues of resolution. The Regulations allow this in order to let the principal party determine which path(s) is most effective at reaching resolution.

Question 2

Can the employer ask the investigator to suspend the investigation if the principal party wishes to engage in negotiated resolution or conciliation?

Guidance

Yes, the employer can ask the investigator to suspend the investigation. However, this would not extend the 1 year time period to complete the resolution process.

Section 30

This section addresses questions concerning section 30 of the Regulations.

Question 1

What recourse is available if you, as either the principal or responding party, are not satisfied with the conclusions or recommendations in the investigator’s report, or the way in which the investigation was conducted?

Guidance

Under the Regulations, the resolution process is considered complete once the employer implements the recommendations in the investigator’s report. As such, there is no appeal process under the Code or Regulations if:

  • you are not satisfied with the conclusions or recommendations in the investigator’s report, or
  • you believe the investigation was flawed

However, you should communicate these concerns to your employer or designated recipient as soon as possible.

If your concerns are not resolved, you may be able to request a judicial review of the investigation by the Federal Court, within 30 days of receiving the investigator’s report. You should consult a lawyer regarding this process, since it is not prescribed by the Regulations.

Question 2

What kind of recommendations should be included in the investigator’s report?

Guidance

The investigator’s report should contain recommendations on methods of eliminating or minimising the risk of a similar occurrence in the future. The recommendations should not reveal directly or indirectly the identity of the persons involved in the occurrence or in the resolution process. For example, the report could contain recommendations on methods to eliminate systemic issues related to:

  • the organizational culture or structure, or
  • specific training that should be undertaken by the parties involved

Section 31

This section addresses questions concerning section 31 of the Regulations.

Question 1

What happens if the employer and the work place committee or health and safety representative cannot agree on which recommendations set out in the investigator’s report should be implemented?

Guidance

The employer must reasonably attempt to come to agreement with the workplace committee or health and safety representative regarding which recommendations to implement. If the employer and the work place committee or health and safety representative cannot agree on which recommendations should be implemented, then the employer’s decision on this matter prevails. However, the employer must document its decision and the reason for that decision as per paragraph 35(1)(d) of the Regulations. The employer must also keep a record of the decision and its reasons for 10 years as per subsection 35(2) of the Regulations.

If you, as an employee, believe that your employer’s decision to not implement a recommendation is a failure to protect your health and safety, you should follow the internal complaint resolution process described in Section 4. You may also be able to file a grievance under your collective agreement, or a file a complaint under the Canadian Human Rights Act, as applicable.

Section 32

This section addresses questions concerning section 32 of the Regulations.

Question 1

What is meant by “resolution process of an occurrence is completed” at section 32 of the Regulations?

Guidance

The resolution process of an occurrence is considered complete when any one of the following conditions are met:

  • the employer and workplace committee or health and safety representative have reviewed and if necessary updated the work place assessment under subsection 6(1) of the Regulations, following a principal party informing the employer or designated recipient of their choice under section 18 of the Regulations to end the resolution process
  • the employer or designated recipient could not determine the identity of the principal party from the notice of an occurrence as per subsection 19(2) of the Regulations
  • the principal party and employer or designated recipient upon review of the notice of an occurrence under subsection 23(3) of the Regulations, jointly determine that the occurrence does not meet the definition of harassment and violence
  • the principal party agrees that the occurrence is resolved through negotiated resolution under section 23 of the Regulations or conciliation under section 24 of the Regulations, or
  • the employer has implemented the recommendations in the investigator’s report that have been jointly agreed to by the work place committee or health and safety representative under subsection 31(1) of the Regulations

It is recommended that employers document any of the principal party’s:

  • choice to end the resolution process
  • joint determination with the employer or designated recipient that the occurrence does not meet the definition of harassment and violence, and
  • agreement that the occurrence has been resolved through negotiated resolution or conciliation

This either can be done through the monthly status update or through another means (such as written confirmation letter from the principal party).

Section 33

This section addresses questions concerning subsections 33(1) and 33(2) of the Regulations.

Question 1

What happens if you, as an employer, cannot complete the resolution process within the timelines set out at subsections 33(1) and 33(2)?

Guidance

If you cannot complete the resolution process within the timelines set out at subparagraphs 33(1) and 33(2) then you are required to document the reason for the delay, as outlined at paragraph 35(1)(f) of the Regulations. You must also must keep a copy of the record for 10 years under subsection 35(2) of the Regulations.

Section 34

This section addresses questions concerning section 34 of the Regulations.

Question 1

What information should you, as the employer or designated recipient, include in the monthly status updates provided to the principal party, and responding party as applicable?

Guidance

You should include the following information on the status of the resolution process, such as:

  • the process that is being followed
  • the status on the review and update of the workplace assessment
  • the status on timelines for the selection and/or hiring, if applicable, of a conciliator
  • the status on timelines for the selection and/or hiring, if applicable, of an investigator
  • the status of the investigation report, and
  • the status of implementing the recommendations from the investigator’s report

Question 2

If the occurrence is being resolved through an investigation, can the investigator provide the monthly status updates instead of the employer or designated recipient?

Guidance

No, only the employer or designated recipient can provide the monthly status updates.

Section 35

This section addresses questions concerning section 35 of the Regulations.

Question 1

Who should have access to the health and safety records that the employer is required to keep under section 35 of the Regulations?

Guidance

As an employer, you required to keep the health and safety records outlined at section 35 of the Regulations. You must also make these records available, upon request, to the policy committee and/or the workplace committee or health and safety representative. However, for notices of an occurrence, you must first obtain the consent of the principal party before disclosing copies of the notice(s). If you do not receive such consent, then you shall not provide these notices to the policy committee, workplace committee or health and safety representative.

Section 36

This section addresses questions concerning subparagraphs 36(d)(vi) and 36(d)(vii) of the Regulations.

Question 1

What is meant by “the types of professional relationships that existed between the principal and responding parties” at subparagraph 36(d)(vi) in the Regulations?

Guidance

For the purposes of these Regulations, the term “professional relationships” refers to an:

  • employee-employee relationship, including students and interns
  • employee-supervisor or manager relationship, and
  • employee-third party (individual who is not an employee) relationship

Question 2

What is meant by “the means set out in section 32 by which resolution processes were completed and, for each of those means, the number of occurrences involved” at subparagraph 36(d)(vii)?

Guidance

For the purposes of these Regulations, this section refers to how many occurrences were resolved through any of the following avenues:

  • a review and update of the workplace assessment under subsection 6(1) of the Regulations
  • negotiated resolution
  • inability to identify the principal party from the notice of an occurrence (subsection 19(2) of the Regulations)
  • conciliation, and
  • an investigation

Question 3

What period of time is covered in the annual report that the employer must provide to the Minister on or before March 1st of each year?

Guidance

The employer must provide the information outlined at paragraph 36(d) for the preceding calendar year (January 1st to December 31st of the preceding year). Annual reporting will start on March 1st, 2022.

Bill C-65

Section 122

This section addresses questions concerning subsection 122(1) of the Code.

Question 1

Can a single action, conduct or comment be considered harassment and violence?

Guidance

Yes, the definition at subsection 122(1) of the Code allows for a single action, conduct or comment to constitute harassment and violence.

Question 2

What is meant by “including any prescribed action, conduct or comment” at subsection 122(1) of the Code?

Guidance

The term “prescribed” in the Code refers to the provision under section 157 of the Code. This provision allows for additional information or requirements to be provided in Regulations. In this case, the Regulations do not prescribe any specific actions, conducts or comments that would constitute workplace harassment and violence. Therefore, the definition provided at 122(1) of the Code contains the full extent of what is considered harassment and violence under the Code.

Question 3

What are some examples of harassment and violence?

Guidance

Harassment can include, but is not limited to an employee:

  • spreading malicious rumours or gossip about an individual or group
  • cyber bullying (threatening, spreading rumours, or negatively talking to or about someone online or on social media)
  • making offensive jokes or remarks
  • playing unwanted practical jokes, including hazing and other pranks
  • socially excluding or isolating someone
  • unwanted remarks about a person’s body, clothing, or appearance
  • tampering with someone’s work equipment or personal belongings, or impeding a person’s work in any deliberate way
  • vandalizing or hiding personal belongings or work equipment
  • persistently criticising, undermining, belittling, demeaning or ridiculing a person
  • misusing authority to create hardship for an individual, including:
    • maliciously changing work guidelines
    • restricting information or setting impossible deadlines that will lead to failure, and
    • blocking applications for leave, training, or promotion in a malicious manner
  • intruding a person’s personal space
  • stalking
  • public or private ridicule
  • verbal threats or intimidation
  • unwelcome physical contact
  • sexual innuendo/insinuation
  • unwanted and inappropriate or persistent invitations, gifts, messages, calls, or requests, including of a sexual nature
  • displaying offensive posters, cartoons, images or other visuals
  • using workplace resources (such as the work email, phone, computer, etc.) to stalk or intimidate an (ex)partner or other third party
  • making aggressive, threatening or rude gestures
  • retaliation of any kind (for example, in the form of threats, punitive or disciplinary action, bribery, etc.) for submitting a notice of an occurrence, and
  • engaging in any of the actions that is against a person because of that person’s race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability or any of the other prohibited grounds that are listed in the Canadian Human Rights Act

Violence can include, but is not limited to:

  • hitting
  • kicking
  • biting
  • punching
  • spitting
  • scratching
  • squeezing
  • pinching
  • battering
  • homicide
  • swearing or shouting in an offensive manner
  • verbal abuse
  • attack with any type of weapon
  • contact of a sexual nature; and
  • sexual assault

Section 123.1

This section addresses questions concerning section 123.1 of the Code.

Question 1

Can you, as an employee, pursue the resolution process under the Regulations if you have initiated a complaint under the Canadian Human Rights Act or are pursuing resolution under a collective agreement?

Guidance

Yes, you can pursue multiple concurrent proceedings under the Code/Regulations, the Canadian Human Rights Act and grievances under their collective agreement.

Section 125

This section addresses questions concerning subparagraph 125(1)(z.16) and subsection 125(5) of the Code.

Question 1

Concerning subparagraph 125(1)(z.16) of the Code, is there a time limit for you, as a current employee, to notify your employer of an occurrence of harassment and violence?

Guidance

No, there is no time limit for you to submit a notice of an occurrence of harassment and violence to your employer. However, lapse of time may impact the employer’s ability to properly assess the situation. You are therefore encouraged to submit your notice as soon as you are able to. If the responding party identified in the notice of an occurrence is no longer in the work place, the employer will not be required to pursue an investigation. Instead, the employer will have to conduct a review and update of the work place assessment, as required by paragraph 6(1)(b) of the Regulations.

Question 2

Concerning subsection 125(5) of the Code, is there a time limit for you, as a former employee, to apply to the Minister for an extension to the 3 month time period after your employment ended to notify your employer of an occurrence?

Guidance

No, there is no time limit for you to submit an application to the Minister to extend the time period for notifying your employer of an occurrence. However, you are required to demonstrate in your request for an extension that:

  • you incurred trauma as a result of the occurrence, or
  • you have a health condition that prevented them from notifying their employer within the prescribed 3-month time period
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