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Over the last few years, our workplace investigation practice has expanded to include a growing number of workplace assessments. Unlike investigations which focus on findings of fact, assessments take the cultural temperature of an organization or a work group within the organization. In contrast to investigations, which are generally triggered by a complaint, an assessment is a proactive, employer-initiated process in which employees are asked about their experiences at work, and the overall tone and culture of the workplace.
Working with our clients, we have found that when workplaces are sexualized, replete with bullying and abusive behaviour, or characterized by mistrust and favouritism, the problems often go beyond the “one bad apple” who needs to be disciplined or removed. In those cases, the entire cultural “bushel” may need remediation.
Ideally, cultural change is initiated and implemented of the organization’s own volition based on its own inherent interests in improving workplace dynamics. In some cases, however, workplace remediation-type activities have been mandated through litigation or legal settlements.
Under section 45.2 of the Human Rights Code, the Human Rights Tribunal of Ontario has the discretion to issue “[a]n order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.” These so-called “public interest remedies” can be ordered regardless of whether the applicant has requested such a remedy.
Among other things, the Tribunal has ordered organizations to change current practices, retain an external consultant to help develop workplace human rights policies, or require human rights training for staff and management. The 2012 Report of the Ontario Human Rights Review revealed that public interest remedies were ordered in 60 per cent of cases where discrimination was found.
Some of the most extensive and interventionist “public interest remedies” come out of settlements involving systemic human rights issues.
In 2007, in response to a number of race-based complaints, the Toronto Police Service agreed to partner with the Ontario Human Rights Commission on a three year-long human rights organizational change initiative. The purpose of the organizational change initiative was to address systemic issues and promote compliance with human rights principles in both services and employment.
A similar agreement was reached in 2011 in settlement of the longest-standing human rights case in Canada – McKinnon v. Ministry of Community Safety and Correctional Services.
When previous Tribunal orders failed to effect any significant change to the workplace for Mr. McKinnon, an Indigenous correctional officer who was harassed by his co-workers, the parties agreed that a more systemic approach was required. They signed on to their own multi-year organizational change project with the Ontario Human Rights Commission.
These cases are cautionary tales about the potential consequences of failing to respond adequately to systemic issues in the workplace.
In light of these outcomes, when an employer recognizes that they have a problematic workplace culture on their hands, they may want to consider “taking the bull by the horns” and implementing measures to proactively address the organizational dynamic. Indeed, most employers would prefer to take this kind of preventative action to having a more onerous process imposed on their organization through a legal decision or settlement.
The million-dollar question is: How can employers approach this? Where should they start?
Here are our thoughts based on strategies our clients have used to affect significant cultural change. We have used the amendments to the Occupational Health and Safety Act (“OHSA”) under Bill 132 as a backdrop, as we see this an opportune moment for employers to focus on workplace behaviour and culture.
- Start from the Top
Visible support from the upper echelons of an organization or from the “head honcho” him or herself can go a long way to create “buy-in” for workplace cultural change. Change is unsettling at all levels of an organization, and so it is natural for employees to look to leadership for direction.
The advent of Bill 132, provides an easy opportunity for organizational leaders to do so. They could plan to embrace the changes of this new legislation. This could come in the form of participating in or attending the “information and instruction” sessions required under section 32.0.8 of the OHSA and perhaps even make some introductory comments. Organizational leaders could also:
- Pen a preface to the workplace harassment policy or program
- Send out a memo, email or letter communicating their commitment to a harassment-free workplace
It is important that leaders also speak with one voice, model the behaviour they require of others, and impose a consistent standard for all (including themselves!) in the organization.
- Listen to Your Employees
Although the new provisions of the OHSA require that workplace harassment programs be developed in consultation with the health and safety committee or representative, this is also consistent with cultural change “best practices”.
The more involved employees are in the development of the policies, programs, training, communications, etc the more likely they are to understand and support the anti-harassment message and champion it in the workplace.
In addition to this benefit, employees are typically more attuned to the realties, needs and challenges of the workplace and may be more adept than management at identifying and addressing barriers and sources of resistance to the message. Employers may want to consider a survey or workplace assessment to get a better idea of the workplace dynamics and needs.
- Communicate Meaningfully
Employees will not be able to “buy-in” to the new changes in the workplace if they do not understand what the changes are, or the issues they are meant to address.
Among other things, employers can promote this understanding by updating their policies and programs to clearly set out the types of comments and conduct that constitute “harassment” and are, therefore, prohibited in the workplace.
Employers may also want to provide meaningful examples of “harassment” to give employees a better sense of how harassment might play out in the workplace.
Section 32.0.1(1) of the OHSA requires that employees receive information and instruction about workplace harassment, the policy and the program. While employers may be tempted to approach this education requirement as a “checkbox” that they just want to check off, there are real culture change gains to be made through meaningful communication.
Bill 132 gives employers an opportunity to make the formal case for civility in the workplace and set the standard for a respectful workplace.
Instead of providing employees with a dry or off-the-shelf presentation about workplace harassment, look for opportunities to connect with the employees on a more personal or emotional level. Employers may want to consider using video or written formats to convey content about workplace harassment and its impacts. Whatever the format, employees should have the opportunity to ask questions about the workplace harassment policy and program and to have these answered by knowledgeable staff members.
It is also important to deliver educational content in a way that is mindful of the audience. Communications should be written in plain language in a way that is accessible and relatable to everyone and real life/practical examples — ideally ones that are tailored to your work and workplace — are always useful. Also, not all information needs to be delivered by a “talking head” at the front of a class. Employers may also want to consider posters, pamphlets, or e-learning to convey the information required under Bill 132.
- Create Accountability
When it comes to addressing workplace culture, some of the more resistant employees will need to feel the impacts of their conduct/attitudes on a more personal level before they will consider change. This is why it is important to put accountability measures in place to promote compliance with the workplace harassment provisions of OHSA.
For employees, it may be appropriate to formally factor-in compliance with workplace harassment policies/programs in the performance evaluation or bonus review processes. Questions about workplace culture and dynamics may also be incorporated into employee engagement survey and exit survey.
In other workplaces, employers are required to consider whether an employee has a past history of substantiated harassment allegations in deciding whether or not to offer the employee a promotion or other job opportunity.
At the management level, it may help build accountability if managers/supervisors are required to compile and report complaints or incidents of workplace harassment to senior management at regular intervals.
- Walk the Talk
Perhaps the most critical requirement of a successful cultural change strategy is that employers follow through and are seen to be following through on the commitments articulated in the workplace harassment policy and/or program.
In other words, it is not simply enough to have the policies and procedures in place. Whether or not meaningful cultural change occurs will depend on how the policy and program are put into practice and how issues are addressed once they are identified.
Employers come up against situations where their resolve and commitment to the policy and program is really tested. It is critical that employers’ “stick to the plan” and do not deviate or make exceptions to the policy and program – even if it makes them a little unpopular with their employees in the short-term. Nothing can sabotage a cultural change process faster than an employer who looks the other way when he or she learns that a top-performer is an office bully.
Ultimately, organizational leaders will need to hold themselves accountable for the implementation of Bill 132, particularly if they wish to then hold staff accountable to Bill 132’s standards.
Implementing Bill 132 is a process that ought to be well-thought out and rolled out appropriately. Seeking the assistance of staff, organizational leaders, and employment counsel may be a part of that process. However, if embraced, the process can be a great opportunity for any organization willing to take a hard look at its culture.
Megan Forward and Parisa Osborne
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.
About the Author: Toronto Employment Lawyer Parisa Osborne regularly speaks to human resources professionals, educators, and business owners about employment law and workplace human rights issues. Parisa has designed and delivers interactive workshops on such topics as youth employment, harassment and bullying, and social media in the workplace.