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RT Policy Reflection #1:
Is there a place for mediation and ADR in a post-Bill 132 world? Blog Series
In addition to workplace investigations, assessments and training, one of the other services that we provide at Rubin Thomlinson is policy reviews. In this capacity, we review organizations’ workplace harassment policies (among others) to ensure that they are effective and compliant with the relevant legislation.
Over the course of my next several blog entries, I will be exploring and reflecting on some of the biggest problems, flaws and oversights that I encounter when reviewing such policies.
With the second anniversary of the Bill 132 changes fast approaching (September 2018), my hope is that organizations can use some of this insight to shape future iterations of their own workplace harassment policies which, pursuant to the legislation, must be reviewed on (at least) an annual basis.
The first post in this series tackles the question: Is there a place for mediation and ADR in a post-Bill 132 world?
The changes to the Occupational Health and Safety Act under Bill 132 introduced a clear and unequivocal “duty to investigate” incidents and complaints of workplace harassment so, it is surprising that I still see policies that continue to frame mediation and alternative dispute resolution (ADR) as viable (and sometimes preferred) alternatives to an investigation.
To be clear, I am not talking about policies that provide for mediation or ADR as tools in an employer’s arsenal for addressing workplace harassment, I am talking about policies that encourage complainants and respondents to participate in mediation or ADR in lieu of an investigation. Particularly troubling to me are those policies that dictate that employees must participate in mediation and/or ADR before they can access the investigation process or those policies that do not account for the fact that mediation and/or ADR may be wholly inappropriate depending on the particular allegations (e.g. a sexual assault) or power dynamics involved.
This is not to say that there is not a role for mediation and ADR in the resolution of incidents or complaints involving workplace harassment – only that this cannot replace an investigation.
This perspective is supported by the Ministry of Labour’s own guidelines on the subject, Workplace Harassment and Violence – Understanding the Law, which states:
“The employer must ensure that an investigation is conducted that is appropriate in the circumstances. Alternative dispute resolution or mediation cannot replace the investigation [my emphasis]. It may be possible, if the parties agree, for alternative dispute resolution to form part of the resolution of the complaint after the investigation is completed. The process and results should be documented. The employer would still have to provide the results of the investigation, in writing, to the appropriate workers.”
In other words, employers can still use mediation and ADR as part of their resolution toolkit but only after the investigation is complete. Indeed, mediation and ADR can be invaluable to the process of storing the workplace or repairing damaged relationships after an investigation is over.
I think that the phrase that organizations really need to focus on here is “appropriate in the circumstances.”
It seems to me that many organizations continue to hold on to mediation and ADR as incident or complaint resolution options because they feel the need for a more casual, less-involved alternative to the formal investigation. They feel like if they don’t lean heavily on these options, they will be overwhelmed by the significant resource and time demands of multiple formal investigations.
These organizations need to take a deep breath and realize that this is why the caveat “appropriate in the circumstances” was added. It creates a certain amount of “wiggle room” that that employers can tailor the investigation based on the persons involved, the particular allegations and their relative severity.
In some cases, an investigation that is “appropriate in the circumstances” may be as straightforward as asking the parties a few questions, taking some notes and then following up with them to “close the loop” so-to-speak. In other words, not every situation will require a full-blown formal investigation.
In summary, although mediation and ADR have a role to play in the resolution of workplace harassment-related incidents they should never replace an investigation. Any language to this effect should be removed from policy.
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.