The Power of Perspectives

The Canadian Bar Association

Kim Covert

Proposed workplace harassment regulations put burden on the victim

October 24 2018 24 October 2018

 

If the #MeToo movement has done nothing else, it has started a conversation about how difficult it can be for victims of abuse and harassment to come forward. When the abuse and harassment are happening in the workplace, there can be additional obstacles for victims – regardless of gender – to overcome.

The CBA’s Labour and Employment Law Section and the CBA Women Lawyers Forum say the burden for making changes in the workplace should not fall on the victim. They suggest the proposed regulatory framework for Bill C-65, which addresses workplace violence and harassment in federally regulated workplaces, should “explicitly contemplate” that witnesses can also bring a complaint. And they don’t stop there.

“Even in the absence of a formal complaint, the employer may become aware of possible workplace harassment or violence and have an obligation to investigate and address the situation due to potential harm and liability,” the Sections say in their submission to Employment and Social Development Canada (ESDC). “We recommend that a formal complaint not be necessary to trigger the employer’s responsibility to investigate and remedy a situation of workplace harassment or violence.”

The Sections say they support the regulatory approach proposed in the Consultation Paper in general, but offer several other suggestions for improvement.

The Section recommends expanding the definition of “harassment and violence” to incorporate the standard definitions already used by labour and employment lawyers, “to enhance certainty and reduce the risk of confusion.”

Where the Consultation Paper proposes requiring employers to make a “genuine attempt” to resolve a complaint before appointing a “competent person” to do so, the Sections point out that it is uncertain who must make the genuine attempt and how it will be decided that the threshold has been met. “We recommend that the existing regulations be maintained which require a competent person to be appointed if the issue is unresolved in a specified timeframe.”

That specified timeframe is itself problematic, in that if the employer fails to meet the set timelines, the burden falls to the victim to complain to the ESDC Labour Program. The Sections recommend that Bill C-65 set out a “more direct and proactive manner of communication” in order to relieve the employee of the responsibility to complain in order to receive information.

The six-month timeframe may not be feasible if the victim asks for a mediator before the process advances to the appointment of a “competent person,” so the Sections recommend allowing parties to ask for an extension. It also suggests that the regulations under Bill C-65 set out what can happen next if the respondent or complainant disagrees with the report from the competent person.

They also suggest that the options for responding to a finding of workplace harassment or violence, currently limited to discipline, be expanded to include training and education.

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