Bill 132 – Best Practices from a Legal Perspective

Bill 132, effective on September 8, 2016, contains significant amendments to the Ontario Occupational Health and Safety Act(OHSA). Included among these amendments are:

(1) An expansion of “workplace harassment” to now include “workplace sexual harassment,” defined as:

(a) Engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome; or

(b) Making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.

(2) The requirement that an employer create a policy and program with respect to workplace harassment which includes workplace sexual harassment. The program must be developed and maintained in consultation with the joint health and safety committee  or health and safety representative within the workplace. Among other things, the program must:

• include a reporting mechanism for incidents of workplace harassment, including a reporting mechanism for when the alleged harasser is the employer or supervisor;
• ensure that all complaints and allegations are investigated; and
• set out how the complainant and respondent will be informed of the results of the investigation and any corrective action taken (which information must now be communicated to the complainant and respondent in writing).

(3) Expansion of the inspector’s powers to include the power to order that an employer conduct an investigation “by an impartial person possessing such knowledge, experience or qualifications as are specified by the inspector” and that a written report be prepared, at the employer’s expense.

Ministry of Labour (MOL) inspectors will be active in enforcing the “beefed up” protection against workplace sexual harassment. Some best practices to comply with the amendments include:

(1) Creating a Training Plan – The plan must spell out how the employer will train all of its employees on Bill 132. Training material should be drafted in consultation with either the JHSC or health and safety representative. All material must be reviewed and updated at least once per year.

(2) Reviewing/Updating Existing Policies –

(a) Reporting Procedures: This includes procedures for workers to follow when reporting incidents of workplace harassment to a person other than their employer or supervisor (i.e. if the employer or supervisor is the alleged harasser);

(b) Investigatory Procedures: These are procedures setting out how incidents or complaints of workplace harassment are to be investigated and dealt with;

(c) Confidential Information: The policy will be required to state that sensitive or confidential information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary for investigating, taking corrective action, or by law;

(d) Corrective Action: Disciplinary policies should indicate when and how an employer will respond to conduct addressed by Bill 132; and

(e) Disclosing Results: Policies should articulate how a worker who has allegedly experienced workplace harassment and the alleged harasser (if s/he is a worker of the employer) will be informed of the results of the investigation and of corrective action that has been, or will be, taken.

(3) Creating a Procedure for Mandatory Investigations – it is now mandatory to investigate every complaint of workplace harassment in a manner that is “appropriate in the circumstances”. MOL inspectors define what is “appropriate in the circumstances.” Some best practices related to the investigations include:

(a) Early Identification of Conflicts of Interest – a conflict of interest due to a personal relationship or fraternization between a manager and a subordinate may exist. Consideration must be given to whether an outside (external) investigator would be appropriate in certain circumstances. This should be determined at the outset of any investigation.

(b) Proper Documentation and Document Control – MOL inspectors have the ability to Order an employer to engage a third party (external) investigator in circumstances where the investigation of a workplace harassment complaint appears to have been deficient. The MOL wants evidence of a structured, documented investigation; in the absence of such evidence (or due to a conflict that taints the investigation), an order for an external investigation is very likely to follow. The cost of the external investigation must be borne by the employer alone.

(c) A “No Reprisal” Policy – The employer must not punish an employee for making a complaint in good faith. Reprisal can be overt, such as the extreme example of terminating an employee for bringing a complaint. Reprisal can also take more subtle forms, such as denial of overtime opportunities, passing an employee over for a promotion, or putting an employee on a less desirable shift, where the decision to do so is in any way related to the employee having made a complaint under Bill 132.

These are only some of the highlights of Bill 132. Employers must be diligent in fully reviewing and understanding the various amendments, and their new obligations, in order to remain compliant with Bill 132.