Workplace Investigations in a Post-Bill 132 World: What every school board leader needs to know

Transcription

1 Workplace Investigations in a Post-Bill 132 World: What every school board leader needs to know Janice Rubin Rubin Thomlinson LLP Ontario Public School Boards Association Labour Relations Symposium April 7, 2017 Toronto, Ontario rubinthomlinsonllp.com rtworkplacetraining.com The information provided is for discussion purposes only and does not replace legal advice. Follow us on 1

2 Overview 1. What are the changes? 2. Will there be more complaints? 3. What is an appropriate investigation? 4. How can we prepare? 5. What does this mean? 2

3 1. What are the changes? Bill 132, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment). Amendments to the Ontario Occupational Health and Safety Act. Took effect on September 8, These amendments include: Expanded workplace harassment definition New program requirements Duty to investigate New enforcement powers Impacts on information and instruction (i.e. training) 3

4 Supporting Documents Code of Practice See: Support implement of workplace harassment provisions of OHSA Not mandatory but instructive MoL Inspectors may rely on Includes samples Workplace Violence and Workplace Harassment Guide See: Poses and answers questions about compliance with OHSA (FAQ) MoL Inspectors may rely on 4

5 2.Will there be more complaints? Yes! Bill 132 introduced a duty to investigate. Under s (1), an employer must ensure that: (a) an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances. 5

6 What is an incident? According to the Code of Practice, [a]n employer must ensure that an investigation appropriate in the circumstances is conducted when: 1) the employer or supervisor becomes aware of the incident of workplace harassment by the worker who allegedly experience it or another worker; or 2) a complaint, whether in writing or verbal, of workplace harassment is made to the employer. 6

7 What qualifies as an incident? Some kind of sub-complaint Non-formal complaint mechanisms Such as: Word of mouth Exit interviews Employee engagement surveys Performance reviews 360 reviews Issues raised by bystanders *Issues raised in anonymous complaint lines 7

8 3. What is an appropriate investigation? The Code of Practice sets out seven (7) that an employer must at a minimum complete as part of their investigation: 1. Maintain confidentiality; inform parties of confidentiality requirements. 2. Interview the complainant and the alleged harasser. 3. Give the alleged harasser an opportunity to respond to specific allegations. 4. Separately interview any relevant witnesses. 5. Collect and review relevant documents. 6. Take appropriate notes and statements during interviews. 7. Prepare written report of investigation, including, finding of fact. 8

9 What is appropriate? According to the HRTO in Lavoie v. Calabogie Peaks (2012 HRTO 1237): [ ][I]t is fair to assess the investigation in light of the size of the workplace, the sophistication of the managers who were involved, and against the standard of reasonableness, not perfection. 9

10 What is not appropriate? In Shoan v. Attorney General (2016 FC 1003): Respondent is accused of sending harassing s to complainant. Investigation is conducted by third-party vendor on pre-established roster who is a mediator by trade. Investigator concluded that the allegations were substantiated and respondent s appointment is revoked. Court considers whether the investigator maintained an open-mind during the investigation and found that she did not. 10

11 Shoan v. Attorney General (cont d ) Court concluded that the investigator: Did not maintain objectivity; Pursued and commented on issues that were beyond the scope of the mandate; Failed to critically and impartially analyze the evidence; Accepted the complainant s evidence about the s and discounted that of the respondent; and Changed some of the wording in the report. Investigator also destroyed her notes unreasonable. Employer ordered to pay $30, 000 in costs and to reinstate respondent. 11

12 What is not appropriate? (cont d ) According to the HRTO in Faghihi v. Black Swan Pub and Grill (2016 HRTO 1109), the process was flawed as the investigator: Was not neutral Provided no analysis and did not reach a conclusion Did not communicate key information to complainant 12

13 4. How can we prepare? 13

14 i) Do not assume that people will come forward 4 in 5 of the Canadians who indicated that they have been sexually harassed or subjected to unwanted sexual contact did not report to their employer (ARI - ). Reasons for under-reporting (sexual harassment and unwanted contact)(ari): Felt the issue was too minor Didn t think the employer would respond well Embarrassed by what happened Not sure it was harassment Afraid to lose your job 14

15 i) Do not assume that people will come Why don t people speak up? forward (cont d ) According to the Public Sector Integrity Commissioner s white paper The Sound of Silence (see lowing_and_the_fear_of_reprisal2.pdf): Diffusion of responsibility Social influence Cost of being wrong This means that we need to ASK! 15

16 CBC internal survey (2015): The Power of the Ask 43 per cent of survey respondents said they would not describe their workplace as psychologically healthy. Government of Canada survey/consultation (2017) to seek insight into: the prevalence of workplace harassment and violence in Canadian workplaces; the types of harassing and violent behaviours that Canadians are experiencing in their workplaces; the types of risks that are contributing to workplace harassment and violence; the types of preventative measures, responses and supports that are being provided; and the types of resources that would be useful towards achieving our goal of having workplaces free from harassment and sexual violence. 16

17 ii) Build internal capacity According to s of OHSA, [a]n employer shall provide a worker with, (a) information and instruction that is appropriate for the worker on the contents of the policy and program with respect to workplace harassment. Train to recognize workplace harassment and on how to conduct investigations that are appropriate in the circumstances. Establish a roster of qualified, internal investigators. 17

18 iii) Build external capacity According to section 55.3(1) of OHSA: An inspector may in writing order an employer to cause an investigation described in clause (1)(a) to be conducted, at the expense of the employer, by an impartial person possessing such knowledge, experience or qualifications as are specified by the inspector and to obtain, at the expense of the employer, a written report by that person. 18

19 Best practices for when to use an external investigator 1. The allegations have an eww factor. 2. There is a high profile person involved. 3. The parties or subject matter is too close for comfort. 4. There is uncertainty about how to proceed. 5. The internal investigators are inexperienced or untrained or there are none. 6. The investigation has a high likelihood of legal challenge. 7. There are other demands on the internal investigator s time. 19

20 iv) Address the root causes Not just a bad apple sometimes the whole bushel Establish clear standard of behaviour Build accountability Move from reactive to proactive 20

21 v) Collect data Data helps to: Identify barriers within complaint system Identify trends or systemic issues Hold employees accountable Hold management accountable Uncover invisible problems 21

22 vi) Harness the power of the bystander The Corporation of the City of Brampton and The Brampton Professional Firefighter s Association, Local 1068 International Association of Firefighters (2016 CanLII (ONLA)): Four bystander interventions Range of intervention strategies used Bystanders can alleviate demand on employers for formal complaint resolution services. 22

23 5. What does this mean? 23

24 The climate has shifted Organizations are being viewed more critically: By tribunals and courts; and In the court of public opinion Just in the last three months 24

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26 In the last three years 26

27 Stay in touch We would like to keep in touch with you and there are many ways to do that. Follow us on Twitter or subscribe to our Alerts via our website. To see our 2016 training curriculum, and to find out more about our course offerings, please visit rtworkplacetraining.com. 27

28 Training Calendar Conducting Sexual Harassment and Violence Investigations May 10-11, 2017 in Toronto Conducting Workplace Assessments May 25, 2017 in Toronto Workplace Bystander Intervention Training June 14, 2017 in Toronto Interviewing and Dealing with Difficult Witnesses June 22, 2017 in Toronto Math for HR Professionals July 12, 2017 in Toronto Assessing Credibility September 28, 2017 in Toronto Basic Workplace Investigation Techniques & Report Writing Workshop October 3-5, 2017 in Toronto The Ins and Outs of Accommodating Mental Illness in the Workplace October 18, 2017 in Toronto 28