August 15, 2024
- What is the definition of harassment and violence? NEW
According to Part II of the Canada Labour Code (Code), harassment and violence means “any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment”.
Examples of harassment and violence
The following is a non-exhaustive list from the Requirements for employers to prevent harassment and violence in federally regulated workplaces:- aggressive or threatening behaviour, including verbal threats or abuse
- physical assault
- spreading malicious rumours or gossip about an individual or a group
- socially excluding or isolating someone
- damaging, hiding or stealing someone’s personal belongings or work equipment
- persistently criticizing, undermining, belittling, demeaning or ridiculing someone
- swearing at someone or using inappropriate language toward them
- using the Internet to harass, threaten or maliciously embarrass someone
- using the Internet to make sexual threats, or to harass or exploit someone sexually
- abusing authority by publicly ridiculing or disciplining a subordinate
- abusing authority by interfering with a subordinate’s performance or job (for example, blocking applications for leave, training or promotion in an arbitrary manner)
- abusing authority by soliciting a sexual or romantic relationship from a subordinate, or making social invitations with sexual overtones to a subordinate
- making abusive or derogatory remarks or jokes about someone’s gender, gender identity or gender expression, sex or sexual orientation (for example, homophobic remarks)
- sexual touching (for example, patting, pinching, caressing, kissing, fondling)
- sexual invitations or requests in return for a promise of a reward (such as a promotion)
- displaying offensive posters, cartoons or images of a sexual nature
- sending inappropriate electronic communications (for example, sexually explicit emails)
- domestic violence (also called intimate partner violence, domestic abuse or relationship abuse) is a workplace hazard when it occurs in the workplace (it puts the targeted worker at risk and may pose a threat to coworkers)
- In the context of an investigation, what criteria must be met to establish whether there was harassment and violence? NEW
Harassment and violence is a serious matter. To substantiate harassment and violence allegations, it must be demonstrated that, according to the balance of probability:
- The responding party displayed an improper and offensive conduct including objectionable acts, comments or displays, or acts of intimidation or threats, or acts, comments or displays in relation to a prohibited ground of discrimination under the Canadian Human Rights Act;
- The principal party was offended or harmed, including the feeling of being demeaned, belittled, personally humiliated or embarrassed, intimidated or threatened;
- The behaviour occurred in the workplace or at any location or any event related to work, including while on travel status, at a conference where attendance is sponsored by the employer, at employer-sponsored training activities/information sessions and at employer-sponsored events, including social events; and
- There was a series of incidents, or one severe incident, which had a lasting impact on the individual.
Note: In the case of sexual harassment particularly, a single incident may be viewed to be more significant in circumstances when the relationship at work is one where the responding party has influence or power over the principal party for career advancement, performance reviews, absenteeism, day-to-day management of activities, work assignments and the carrying out of progressive disciplinary measures. - I have a difficult time discerning the difference between conflict and workplace harassment and violence. How do I know if I should speak to the Informal Conflict Management Systems (ICMS) coordinator for conflict or to the designated recipient (DR) for harassment and violence? NEW
Conflict is often confused with harassment and violence as defined in the Canada Labour Code (Code). Although the designated recipient and ICMS coordinator can provide support in either situation, in most cases, an incident that does not meet the threshold of harassment and violence is conflict. There may be situations where ICMS may not be appropriate to resolve certain incidents, such as emergencies, sexual harassment, or domestic violence. There are specific questions that individuals, ideally with the support of the designated recipient, can ask themselves. However, if the harassment and violence pertain to prohibited grounds under the Canadian Human Rights Act, it should be brought to the attention of the designated recipient and the union.
As said in the Requirements for employers to prevent harassment and violence in federally regulated workplaces, it is important to not confuse workplace harassment and violence with normal workplace conflict and differences of opinion. It is appropriate for a supervisor to take the following actions, if they act respectfully, professionally and in good faith:- directly supervise employees, including setting out performance expectations and providing constructive feedback about work performance
- take measures to correct performance deficiencies, such as placing an employee on a performance improvement plan
- take reasonable disciplinary actions
- assign work, and direct how and when it should be done
- request updates or status reports
- approve or deny time off
- request medical documents to support an absence from work as per the appropriate provisions of the applicable collective agreement.
- Is there a process map outlining the steps in the resolution process, such as a flow chart? NEW
Flowchart (Full)
Flowchart (Quick) - If I file a notice of occurrence as a principal party, and I change my mind, can I withdraw or cancel the notice? NEW
Yes, a principal party may end the process at any time; however, the employer and workplace committee or health and safety representative must then update the workplace assessment with the incident from the notice of occurrence in mind.
This is outlined in section 18 of the Work Place Harassment and Violence Prevention Regulations (Regulations): “a principal party may end the resolution process at any time by informing an employer or designated recipient that they choose not to continue with the process”. Then, the following will apply:
You can find additional information on workplace assessment in the Interpretations, Policies and Guidelines (IPG) related to Work Place Harassment and Violence Prevention.Joint review and update
6 (1) An employer and the work place committee or the health and safety representative must jointly review and, if necessary, update the work place assessment if notice of an occurrence is provided under subsection 15 (1) and
(a) the occurrence is not resolved under section 23 and the principal party ends the resolution process under section 18. - If I speak to my manager about harassment and violence occurrences informally and without submitting a notice of occurrence, can it be kept confidential? NEW
When made aware of a potential harassment and violence occurrence, doing nothing is not an option so managers cannot guarantee that what you discuss will not be shared. If you are seeking an off-the record conversation, you should be aware that managers or designated recipients have an obligation or general duty to ensure that the health and safety of every person employed by the employer is protected. As a function of that general duty, managers are expected to take action to address issues that contribute to unhealthy workplaces or cause psychological harm or injury to employees, as well as monitoring psychosocial hazards. The importance of timely resolution to workplace issues remains a key factor in fostering an organizational culture where employees can be healthy, safe, and successful. Management is also expected to examine employees’ behaviour and consult with labour relations to determine the most appropriate action to address those behaviours in the workplace that may not be consistent with the organizations’ values and expected behaviours and the competencies required to meet performance expectations.
If you are seeking an off-the record conversation, please consider contacting your union or representation for specific advice. Other resources to consider that have confidentiality requirements include ICMS or other alternate resolution processes such as EAP or ombuds programs; however, you should be aware that these resources are also bound by specific obligations and general duties to disclose under certain circumstances. You are encouraged to request information from each program or organization on their reporting obligations with the information disclosed to them. - What are the confidentiality rules and requirements? NEW
During the process, information may be shared on a need-to-know basis with individuals who have a legitimate reason to access it. For example, as employers are expected to provide their employees with a healthy, respectful, inclusive, diverse, and safe workplace, they may have access to sensitive information to be able to react. However, the designated recipient should minimize the risk of unauthorized disclosure or misuse of information.
Confidentiality is protected by not revealing the name of the principal party, responding party and witnesses in the investigative report. In fact, any information that could reveal the identities of the parties including addresses and building names is written in such a way that it is not possible to reveal, directly or indirectly, the identity of the persons involved.
If anyone in the workplace suspects or is told the identity of one or more of the parties, they have a responsibility to not disclose the identity, unless there is a need to know. - Do I have a right to participate in the official language of my choice during the resolution process?
Yes, the same rights under the Official Languages Act apply during the resolution process. This is particularly important given the emotional impacts of such conversations and to ensure that the participants are comfortable using their official language of choice. - There is a higher status/higher ranking person in my workplace who I believe is harassing my colleagues and me who are junior to or have less power than them (power imbalance), but I am concerned that a preventative process will not be sufficient, and I am afraid for my job. Is there any way former employees or employees who are about to retire or transfer departments can file a notice of occurrence? NEW
Yes, former employees can file a notice of occurrence within three (3) months of severing their employment relationship. Former employees should contact the Departmental designated recipient for support.
There is additional information here:
https://www.canada.ca/en/employment-social-development/programs/laws-regulations/labour/interpretations-policies/104-harassment-violence-prevention.html. - Do parties to the notice of occurrence have the right to “support” during the process?
Any party to the notice of occurrence has the right to support during the process, including but not limited to, Bargaining Agent support. This can be any person other than another party or witness. - The person I want as a support person was a witness to the incident(s). Why can’t they be my support person? NEW
A support person cannot be a witness or any other party (responding party, principal party, designated recipient, or witness) as this would place them in a conflict of interest. Instead, select a different support person from your workplace, your union, or even a friend or partner from outside of the workplace. It is strongly recommended to ensure that witnesses may freely participate in the investigation to maintain the integrity of the process. The Labour Program Interpretations, Policies and Guidelines (IPG) addresses this as well at Section 20 to 22, question 1. - Parts 23 & 24 of the Regulations speak to negotiated resolution and conciliation. What does this mean?
Early resolution with respect to harassment and violence in the workplace refers to an employer representative meeting with the principal party to determine the nature of the issue and identify whether there may be an opportunity to resolve the matter. The review should focus on determining how the principal party’s concern can best be resolved and the measures that may be necessary to prevent a recurrence as quickly as possible.
The use of problem-resolution mechanisms - such as coaching, mediation, counselling and facilitated discussion - can often resolve the issue and prevent similar occurrences from happening. These mechanisms are what is intended by this conciliation step.
One size does not fit all; it can vary from being very informal to being a formal resolution process.
Situations should be assessed on a spectrum from those where a professional conciliator may be required, to others which may be resolved with the support of another employee, supervisor, or human resources professional. - What are my responsibilities as a principal party or responding party? And what is a reasonable effort? NEW
All employees are strongly recommended to raise concerns and ensure inappropriate behaviours are addressed early, prior to any workplace conflict or harassment and violence reaching the point of irreparable harm.
Parties are required to put in a reasonable effort as a sign of good faith to work towards a reasonable solution. This requirement to make a “reasonable effort” applies to both the responding and the principal party. That means, that the principal party must consider the various solutions and participate rather than push exclusively for an investigation. However, if the principal party, after putting forth a reasonable effort, requests that an investigation be conducted, the employer must ensure an investigation is conducted. It may not be easy for a principal party or responding party to go to conciliation as they may be understandably upset. Nevertheless, this is the opportunity to have a direct impact on the outcome and resolution. Once an investigation takes place, the outcome rests solely in the investigator’s hands. - What type of result can you expect from conciliation or a negotiated resolution? NEW
Conciliation is a flexible type of alternate dispute resolution. However, it is not a public hearing, tribunal, or investigation. It is a neutral, third-party mediation or facilitated discussion to find a mutually acceptable resolution.
The process is supportive, and party driven, while still seeking a root cause analysis. The advantage for the parties is they must mutually agree on the selection of the mediator/conciliator.
If parties choose to engage in conciliation, following conciliation, or if conciliation is unsuccessful, the principal party still has the right to request that an investigation be conducted.
Conciliation can yield a variety of outcomes including but not limited to:- root cause analysis;
- explanation and apology;
- improved communication;
- clarified misunderstandings;
- exploration of potential solutions;
- mutually accepted outcome;
- resolution of the dispute;
- restoration of workplace and restoration of the working relation between the parties; and
- identification of other harassment and violence risk factors.
The parties are required to make a reasonable effort to resolve the issue. Conciliation is an excellent resolution method. Confidentiality must be maintained during the conciliation process. Like the investigation process, conciliation is focused on root cause analysis and prevention, not finding fault and laying blame. - I am seeking a financial reward (remedy) as result of the harassment and violence in the workplace of which I would be the principal party. Should I be filing a notice of occurrence in accordance with the Work Place Harassment and Violence Prevention Regulations (Regulations)?
Formal mechanisms such as investigations, grievances, and legal recourse have been an integral part of our workplaces for a long time. It is not abnormal for a principal party to seek remedy in that context. However, from an occupational health and safety perspective, it is recognized that focusing on finding faults and assigning blame would be an obstacle to the progress in prevention as well as organizational learning. The spirit and intent of the Regulations is to prevent occurrences of harassment and violence. If you decide to go through an investigation, the goal would be to identify what preventative measures can be put in place to prevent a recurrence of the workplace harassment and violence (i.e., institute preventative measures). There is no financial remedy.
Negotiated resolution and conciliation offer significant advantages at the same time as being powerful restorative processes. They both offer a wide range of potential outcomes that could be of benefit to the principal party, the workplace, or both parties. The Regulation does not restrict what may be negotiated within these two processes. All parties may bring potential solutions for consideration by the other parties as part of the negotiations. This could include creative solutions to restore the workplace, such as joint training, manager 360°, or team building exercises, etc. that address the root cause that created the situation where the harassment or violence occurred.
Should a principal party be seeking a personal remedy, there are many other avenues, notably grievances under the appropriate collective agreement. It is recommended that the principal party contact their union representative or union shop steward regarding filing a grievance or contact Human Resources (HR) for guidance. - If a party is on leave or has left the department or agency, how do you proceed with resolution within the prescribed timelines and in a timely manner?
The designated recipient will assess this on a case-by-case basis. However, an absence should not be viewed as stopping or placing the resolution process in abeyance.
If a party is temporarily absent from work for more than 90 consecutive days after a notice of the occurrence is provided, the employer must ensure that the resolution process is completed within the later of- one year after the day on which notice of the occurrence is provided, and
- six months after the day on which the party returns to work.
The designated recipient may explore options such as contacting a party directly about their willingness and ability to proceed, the employer’s representative with the support of Labour Relations can request medical consent/ability to proceed, etc. They may request Bargaining Agent assistance if required.
If the parties are working for two different departments or agencies at the time of the occurrence, then TBS’s Directive on the Prevention and Resolution of Workplace Harassment and Violence should be consulted (see section 4.1.7). The Directive clearly states that the cost will be split 50/50 and that the principal party’s employer will administer the process. Collaboration between both departments is highly encouraged to resolve the incident as early and as close to the parties as possible. - At what point can the process move from conciliation to investigation?
Reasonable effort by all parties must be undertaken to try to resolve the issue prior to an investigation being launched and these efforts may continue during the investigation. The principal party must decide if conciliation is not appropriate or unsuccessful and should take into consideration any views/considerations being raised by the designated recipient on options to resolve. The designated recipient should be in communication with the conciliator to monitor the productiveness and the timeliness of any negotiated resolution. The principal party does have the ultimate choice to proceed to investigation by notifying the designated recipient or employer that they wish an investigation to be conducted while pursuing the conciliation, if desired.
The advantage of conciliation is that it puts the control of the outcome in the hands of the parties directly involved in the occurrence. In other words, the parties with a vested interest in the outcome are provided the opportunity to bring closure to the issue between them, perhaps restoring their ongoing working relationship, without having a resolution imposed on them by a third-party via an investigation. - What criteria are used in appointing an investigator to undertake a workplace harassment and violence investigation?
Section 28 (1) of the Work Place Harassment and Violence Prevention Regulations (Regulations) provides the basic qualifications that an investigator must meet by law. To bring further clarity to the Regulations, the following knowledge, training and experience should be considered:- Have knowledge of the Canada Labour Code – Part II (the Code), the Work Place Harassment and Violence Prevention Regulations, and the Canadian Human Rights Act (CHRA);
- Have training in investigative techniques;
- Have experience in conducting inspections, investigations or audits; and
- Have experience in conducting workplace harassment and violence investigations.
Further knowledge, training, and experience relevant to workplace harassment and violence could be considered including organizational context or case-specific requirements. Consideration for equity and diversity requirements such as knowledge of cultural differences should be made based on individual case/parties’ needs as a best practice.
Another key consideration is that the employer, in consultation with the policy health and safety committee, workplace health and safety committee or representative, as applicable, establish a list of investigators in advance that can be drawn from as needed. This joint activity serves to reassure employees that an investigator on the list meets the requirements established under the Regulations. - What type of knowledge should the “investigator” have?
When the employer is appointing an investigator, knowledge should include, but not be limited to, knowledge of: the Canada Occupational Health and Safety Regulations, the Canada Labour Code – Part II – Occupational Health and Safety, the Canadian Human Rights Act (CHRA), and how to conduct and write a root cause analysis.
Specific knowledge of “Preventative Measures” should be considered as one cannot make sound recommendations to prevent a reoccurrence of workplace harassment and violence should they not be familiar with the various factors, assessment, and prevention measures. - What type of involvement should policy committees have with respect to harassment and violence prevention in the workplace?
The Regulations are clear that policy committees or, if there is no policy committee, the workplace committee or the health and safety representative, should be consulted and participate in all areas related to harassment and violence prevention in the workplace from developing a policy and procedures to investigations and training. This requirement includes consultation on the development of a list of investigators either internal or external to the organization that can be used in the context of an investigation.
The workplace committee is involved in the follow-up to ensure that the recommended controls to prevent a recurrence of workplace harassment and violence are implemented. - What if there is no list developed between the policy committee and the employer from which an investigator can be selected?
If there is no pre-developed list, the parties (principal party, responding party, and designated recipient or employer) must agree on the selection of the proposed investigator to investigate the occurrence(s) keeping in mind that the selected investigator must meet the criteria under Regulation 28 (1). In the federal public service, parties must follow procurement requirements to source for potential investigators, including considering the National Master Standing Offer (NMSO) first.
If the parties cannot agree on the selection of an investigator within 60 days of being notified that an investigation will occur by either the designated recipient or the employer, an investigator must be selected from those that appear on the list developed by the Canadian Centre for Occupational Health and Safety (CCOHS).
Consideration for equity and diversity requirements such as knowledge of cultural differences when selecting from any list of investigators and use of the appropriate diversity tags from the CCOHS list should be made based on individual case/parties’ needs as a best practice.
That list can be found here: https://investigator-enqueteur.ccohs-cchst.ca/. - As a witness or responding party, do I have to meet with the investigator? NEW
Yes, if requested, there is a duty to cooperate in harassment and violence investigations, even for witnesses under Code section 126 (1) (e). This applies equally to all federal employees, regardless of the act under which they are hired. This would include the core public administration as defined in the Financial Administration Act, Schedule I and IV, Canadian Armed Forces (CAF), and Royal Canadian Mounted Police (RCMP). Refer to your Departmental policy, code of conduct, values, and ethics statements for guidance. As employees, you will have received training from your employer, as per section 12 (2) of the Regulations. - What are the essential elements of an Investigative Report?
The components of a fulsome, but concise, investigative report should ideally include:- A summary of the investigative findings.
- An analysis of the root cause of the incident, including enough evidence to support the identified root cause; and
- Recommendations for controls and preventative measures.
A timeline approach with respect to the history and background of the incident can often assist in developing an objective analysis.
A sample report template can be found in Appendix 1 of the NJC Statement of Work – Work Place Harassment and Violence Investigation – 2021-3. - The investigator’s report generally will contain recommendations. How do workplace committees or the health and safety representative ensure the specific recommendations are implemented and ensure that general systemic factors are also considered? NEW
The recommendations contained in the investigator’s report must be implemented, unless they are not reasonably practicable, which is a joint determination with the workplace committee (or representative) and management. Some recommendations may be more general or systemic in nature. These recommendations must also be implemented or considered in the workplace assessment as described in subsection 5 (1) of the Work Place Harassment and Violence Prevention Regulations and consequently may involve communication with additional workplaces via the policy committee.
These broader or systemic hazards and risk factors are not specific to individuals but rather prevention and hazard elimination at the workplace level. In fact, the committee can make additional recommendations to the employer. This could include expanding the scope of the recommendations from the investigator or new or additional measures. For example, if there was a risk of harassment and violence in a parking lot due to a burnt-out lightbulb, the committee may recommend that all parking lots be inspected to ensure no other lights are burnt out and may recommend a schedule to regularly inspect the lights to eliminate the hazard. - Can an investigator make recommendations to the employer even if the investigator determines that workplace harassment and violence did not occur? NEW
Absolutely. The investigator may identify risk factors that could lead to a future occurrence of workplace harassment and violence that may warrant preventative measures being recommended. This is a common outcome of both conciliation and investigations where root causes are identified, and risk factors are eliminated. - According to the regulations, the workplace committee or the health and safety representative receives a copy of the investigator’s report. What is the process if someone on the workplace committee or the health and safety representative is involved in the occurrence(s) of workplace harassment and violence (as a witness, principal party, or responding party)? NEW
In cases where a person is involved in any way in the occurrence(s), they must recuse themselves from consultation on the incident and send an alternate for that agenda item and/or meeting. In cases which are particularly complex or to create a standardized approach, the workplace committee review could be referred to another workplace committee such as a regional or district committee, if one exists, or to the national policy committee with a note as to why it is being referred. - What specifically happens if/when the investigator’s report recommends training? Can training be directed at a single person, a work group, or only the entire workplace? NEW
It is common for an investigator to recommend training as a preventive measure. Training recommendations may include recommendations for training as well as the completion of risk assessments. Investigators should specify what type of training is required, such as dealing with difficult conversations training, human rights training, respectful workplace, values and ethics, etc. The recommendation should be as clear and as precise as possible. The type of training varies according to the severity of the incident.
It is extremely rare that an investigator’s report would note that person X requires specific training. In general, recommendations are commonly directed to a group or type of position. In most cases, training or other recommendations should be directed at the workplace positions as a whole.
In cases that involve potential misconduct, referral to a labour relations specialist to address the potential misconduct through a separate administrative process is required as per subsection 4.1.10.4 of the Directive on the Prevention and Resolution of Workplace Harassment and Violence. It is important for designated recipients, principal parties, responding parties and witnesses to understand that, even though an investigator has provided the required investigation report, the incident may still be addressed through other appropriate processes. - What recourse is available if you, as either the principal or responding party, are not satisfied with the conclusions or recommendations in the investigator’s report?
There is no appeal process under the Canada Labour Code or Work Place Harassment and Violence Prevention Regulations. - My workplace involved two separate departments or agencies. If the principal party and the responding party work for two different organizations, what happens? NEW
It is not uncommon for two (2) departments to work in the same building or together. This is particularly common with Veteran’s Affairs Canada (VAC) and National Defense (DND), Fisheries and Oceans Canada (DFO) and DND, Canada Border Services Agency (CBSA) and Canadian Food Inspection Agency (CFIA) and many others. For such cases, the Treasury Board Secretariat of Canada (TBS) has a directive which can be found here: https://www.tbs-sct.canada.ca/pol/doc-eng.aspx?id=32671.
The directive clearly notes that the cost will be split 50/50 and that the principal party’s employer will administer the process. Collaboration is also expected to resolve the incident as early and as close to the parties as possible.
Treasury Board of Canada Secretariat (TBS) continues to monitor the effectiveness of the directive. - If I have questions about the Work Place Harassment and Violence Prevention Regulations or the Work Place Harassment and Violence Prevention IPG, can I engage the Labour program? What number do I call? NEW
Please call 1-800-641-4049 with your enquiries for the Labour Program.
Further guidance and information on any topic related to Workplace Harassment and Violence Prevention can always be sought from the appropriate departmental or agency designated recipient or from your union.