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For federally-regulated employers, Bill C-65, An Act to amend the Canada Labour Code (harassment and violence)¹will come into force on January 1, 2021.
Whether gearing up to reopen for business or remaining on lockdown, employers may wish to take this time to review their policies and protocols to ensure that they comply with the Bill and the regulations.
In my last blog, I provided some suggestions for employers to ensure that their harassment and violence policies, risk assessments, and training comply with Bill C-65. Today, I’ll look at the new resolution process for handling harassment and violence complaints as set out in the regulations.
The current Canada Labour Code (“CLC”) and the current regulations do not mandate that employers attempt to resolve allegations of harassment – in fact, there isn’t even an explicit duty to investigate harassment. All of the attention is on workplace violence, where an employer “shall try to resolve” an incident of violence with the employees involved.
Bill C-65 will expand the resolution process to include all incidents of harassment and violence known to the employer. The regulations include a resolution process for harassment and violence that involves two steps:
First, upon learning of an incident of harassment or violence, the employer—or the designated recipient²—must make “every reasonable effort to resolve an occurrence.” This is known as negotiated resolution. No further details are available as to what “every reasonable effort” involves, but the open language suggests that the employer or the designated recipient has some flexibility to attempt to resolve the occurrence by the most appropriate method in the context. Here are some examples of what the negotiated resolution process might include:
- The employer might meet with the parties individually, in order to better understand the basis for the conflict that may have escalated into alleged harassment or violence
- Where appropriate, the employer might facilitate a discussion between the parties to attempt to come to a resolution
- If the respondent takes responsibility for engaging in the behaviour, where appropriate, the employer might recommend that he or she apologizes to the complainant, or makes amends with the complainant in some other way
- The employer might appoint a conflict coach to assist both or one of the parties to engage in the conflict in a more respectful and productive manner
Second, if the incident is not resolved by way of negotiated resolution, the complainant has the choice to move to either conciliation or investigation. I’ll discuss the investigation process in my next blog, but what does conciliation mean in this context?
The regulations do not specifically define the term “conciliation.” However, the Regulatory Impact Analysis Statement (which does not form part of the regulations) states that, during the public consultation for the draft regulations, some Indigenous participants felt that the term “mediation” was inappropriate for them because it did not account for the possibility of appointing an Elder to resolve the dispute. The draft regulations therefore used the term “conciliation” instead, and this term was adopted in the final regulations
It appears that the drafters of the legislation have left room for groups to select the most appropriate conflict resolution practitioner for the situation. Against this backdrop, it does not appear that conciliation is simply mediation by another name, but rather, that mediation could be one form of conciliation.
There are several conditions set out for conciliation under the final regulations. First, conciliation may only begin if the complainant and the respondent both agree to engage in the process. Both parties must agree on who will be the conciliator. If conciliation does not resolve the occurrence, and the complainant chooses to proceed with an investigation, the occurrence must be investigated (more on that in the next blog.) Finally, conciliation is permitted only up to the point when the investigator provides their report.
Takeaways for employers:
1.The requirements for resolving incidents of harassment and violence will expand to include negotiated resolution efforts by the employer, and the offer of conciliation.
2. It may be useful to review your internal processes and procedures to resolve incidents of harassment and violence, and to review your internal skill level to resolve occurrences by conciliation.
3. Consider creating a list of potential conciliators ready to propose to the parties, should the parties choose to proceed by way of conciliation.
Bill C-65 and the regulations introduce an expanded approach to resolving incidents of harassment and violence. The new resolution process sets out a two-step procedure (i.e., negotiated resolution and then the offer of conciliation) that must be proposed to the parties before an investigation commences. Further, under the regulations, the parties have some control over the process, as both the complainant and the respondent must agree to engage in conciliation for it to occur, and must agree upon the conciliator.
This is the third installment in the C-65 series – the first blog can be found here, the second blog (on preventing harassment & violence), can be found here. The fourth and final blog will look at what Bill C-65 says about how to investigate harassment and violence, you can find it here.
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1 The full name is 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.
2 The designated recipient is the person to whom notice of an incident of harassment or violence may be reported.