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The rules around investigating incidents of workplace harassment and violence will shift once Bill C-65, An Act to amend the Canada Labour Code (harassment and violence)¹ comes into force. The date that the Bill will take legal effect has not been confirmed, although it is supposed to be this year.
I have written about the changes that the Bill and its Regulations will bring to federally-regulated industries², including an expanded definition of harassment and violence, additional requirements for employers’ policies, training, and risk assessments, and the new mandatory resolution process to deal with incidents harassment and violence. In this blog, I’ll look at how an investigator must be selected under Bill C-65, and what the investigation report must include. But first, a little context:
In accordance with the regulations, Bill C-65 enshrines a duty for the employer to investigate, record and report all occurrences of harassment and violence of which the employer becomes aware. In the current regime under the Canada Labour Code (“CLC”) (pre-Bill C-65), there is no explicit duty to investigate harassment – only violence.
Who can investigate under the current regime?
At present, the current Regulations under the CLC state that only a “competent person” can investigate an incident of workplace violence. This person must be someone who:
- Is impartial and is seen to be impartial by the parties
- Has knowledge, training and experience in issues related to workplace violence
- Has knowledge of relevant legislation
- May be an employee of the workplace or an outside contractor
The current Regulations require that an employer consults the applicable partner (i.e., the Policy Health & Safety Committee (PHSC), or if there is no PHSC, then the Workplace Health & Safety Committee (WPHSC) or Representative), on the decision about who will act as the investigator. However, the employer and the applicable partner do not have to reach an agreement on who the investigator will be.
A complainant or a respondent (the parties to a complaint) may disqualify an investigator by challenging that person’s neutrality. It is recommended that the employer, alongside the applicable partner, establish a list of competent persons ahead of time.
What will change under Bill C-65?
The employer and the parties to the complaint (i.e. the complainant(s) and the respondent(s)) will be required to jointly select the investigator. The Regulations state that if they are unable to agree on an investigator within 60 days, the employer must request that the Minister of Labour appoint an investigator.
The investigator must be trained in investigative techniques, have knowledge, training and experience that is relevant to harassment and violence in the workplace, and have knowledge of the Act, the Canadian Human Rights Act and any other legislation that is relevant to harassment and violence in the workplace.
The investigator must not be the Respondent or someone who reports directly to the Respondent. Unlike the pre-Bill C-65 requirements, the new Regulations do not explicitly state that the investigator must be someone impartial; however, the investigator will still need to be impartial and this is essentially captured by the requirement that the parties agree on the selection of the investigator.
Any list of investigators must be developed in consultation with the applicable partner.
What employers need to know:
1. The investigator must have training and experience in investigative techniques and legislation.
2. There are increased competency requirements for the investigator, such as in investigative techniques – not just knowledge about issues related to workplace violence.
3. The selection of the investigator must be made by mutual agreement between the employer and the parties. Previously, the employer had to consult the applicable partner (but they did not have to agree), and parties had a right to disqualify an investigator, but they did not have to agree on who it would be.
4. Together with the applicable partner, employers might consider reviewing their roster of investigators to ensure that the investigators meet the new competency requirements for investigations of harassment, in addition to workplace violence.
What does the investigation report need to include?
The current Regulations state that the investigator shall provide the employer with a written report that includes conclusions and recommendations. The employer is required to keep a record of the report, provide the workplace committee (or the health & safety committee) with the report, and adapt or implement controls to minimize the risks of workplace violence from reoccurring. The IPGs³ for the Regulations state that the employer must also provide a copy of the report to the parties.
Under Bill C-65’s Regulations, the investigator must provide the employer and each of the parties with a final report and a summary report. The final report must include the following:
- A detailed description of the incident
- The methodology used in the investigation
- Analysis and findings
- Recommendations to eliminate or minimize the risk of a similar occurrence
The summary report must include:
- No disclosure of the names or identities of the parties or witnesses
- A general description of the occurrence
- A summary of the analysis and findings
The summary report must be provided to the applicable partner. The employer and the applicable partner must jointly consider which recommendation(s) should be implemented and then implement them.
What employers need to know:
1. There are new requirements for investigation reports; a final and summary report must be prepared.
2. The obligation to provide the parties with copies of the investigation report might impact how the report is written.
Whether reopening for business or remaining on lockdown, employers may wish to take this time to review their policies and protocols regarding investigations to ensure that they comply with Bill C-65 and the Regulations – before the legislation comes into force.
This is the fourth 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 third blog (on Bill C-65’s Mandatory Resolution Process for Harassment & Violence) can be found here.
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1 The full name of the Act 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 Here is a list of federally-regulated industries.
³Interpretations, Policies and Guidelines, Violence prevention in the workplace – 943-1-IPG-081.