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Assessing Credibility
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On Tuesday, November 7, 2017, the Honourable Patty Hajdu, Minister of Employment, Workforce Development and Labour, tabled 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, for its First Reading.
The bill, which applies to both federally-regulated and the federal parliamentary workplace, is designed to strengthen obligations and protections with respect to violence and harassment, including sexual harassment, in the workplace. Most of the changes proposed under the bill involve the “Occupational Health and Safety” section of the Canada Labour Code.
Because the bill is still in the early stages of legislative process, it will likely undergo significant revision and change before it is receives “Royal Assent” and officially becomes law. What follows are some highlights from the “First Reading”:
- The Canada Labour Code will recognize “psychological injuries and illnesses” – including those incurred through workplace harassment and violence –as threats to occupational health and safety
Whereas the “Occupational Health and Safety” section of the Canada Labour Code (Part 2) has traditionally be concerned with the prevention of accidents and hazards with the potential to harm employees’ physical health, Bill C-65 proposes an expansion of this stated purpose to include the prevention of “psychological injuries and illnesses.” This expansion reflects an evolution in our collective understanding of health and safety as well as a growing recognition of the harm caused by workplace harassment and violence.
- Federal employers have a duty to take prescribed measures against harassment and violence in the workplace
Under Bill C-65, employers will have a duty to take “prescribed measures to prevent and protect against harassment and violence in the workplace, respond to occurrences of harassment and violence in the workplace and offer support to employees affected and violence in the workplace.”
As emphasized by the government’s roll-out of this bill, it is evident that “prevent” is as important to this framework as its other two pillars: respond and support.
- Federal employers have a duty to investigate, record and report occurrences of harassment and violence
According to Bill C-65, “except for as provided in the regulations,” employers will have a duty to “investigate, record and report” all occurrences of harassment and violence known to the employer. This investigation, recording and reporting must be done “in accordance with the regulations”.
Bill C-65 indicates that the regulations pertaining to investigation, recording and reporting may be made by the Governor in Council. We suspect that the regulations are where many of the details will be borne out.
The legislation suggests that the complainant may have to go through an informal resolution process before they can access the formal investigation process but is less clear with respect to the process once this informal stage has been hurdled. In particular, does an unresolved complaint go directly to the Minister for investigation or is the employer required to conduct its own investigation first? In this case, we suspect that many of these gaps will be resolved as the bill moves through the review and approvals process.
- Federal employees have a duty to report occurrences of workplace harassment and violence
Under Bill C-65, employees who believe on reasonable grounds that there has been a contravention of the “Occupational Health and Safety” portion of the legislation or that there is likely to be an accident, injury or illness flowing from employment, have an obligation to make a complaint about it to their supervisor. With the changes proposed under Bill C-65, it seems that this would include “occurrences of harassment and violence”.
- Federal workplaces must take steps to protect the confidentiality of those involved in occurrences of harassment and violence
Under Bill C-65, federal employers will have to approach investigations involving allegations of harassment and violence somewhat differently from investigations where other health and safety issues are concerned. This is to account for the fact that investigations involving harassment and violence are often highly-sensitive in nature and characterized by power imbalances.
In contrast with other types of health and safety complaints, policy health and safety committees, workplace health and safety committees, and health and safety representatives shall not participate in investigations involving occurrences relating to harassment and violence in the workplace nor shall they have access to information that would be likely to reveal the identity of a person who was involved in an occurrence of harassment or violence in the workplace.
For a complete version of the First Reading version of Bill C-65, please click here. Stay tuned for more updates as the bill moves through the legislative process.
Megan Forward
About the Author: Toronto Employment Lawyer Megan Forward develops and delivers training sessions for her clients and conducts investigations and workplace assessments to help employers resolve issues related to harassment, poisoned workplace environments and bullying.
