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Part II: Workplace Harassment Program

General information

An employer must develop and maintain a written workplace harassment program to implement the workplace harassment policy under the Occupational Health and Safety Act (OHSA). If there is a joint health and safety committee or health and safety representative at the workplace as required under the OHSA, the employer must consult with the committee or representative about the program.

The OHSA requires that the workplace harassment program include information about how to report incidents of workplace harassment to the employer or supervisor and to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser. Employers may also want to encourage workers to report concerns if the worker witnesses another worker being harassed.

The person who receives a workplace harassment complaint should not be under the alleged harasser’s direct control. In a larger organization, the person who receives a complaint of workplace harassment may be a supervisor, human resource representative or the president so long as they are not the alleged harasser or under the direct control of the alleged harasser. The program requires an alternate person to be designated to receive a complaint or be notified of an incident if the employer or supervisor is the alleged harasser. A member of the board of directors, a consultant or another person may be considered to receive employer or supervisor related complaints of workplace harassment. Overall, it is important for workers to be able to report workplace harassment to a person who will objectively address the complaint.

The program should set out whether this person would only receive the complaint, or whether this person would be expected to carry out an investigation.

If workplace harassment is found to have occurred at the workplace, the employer may also want to set out in detail the ways in which it will address workplace harassment. Where the harassment arises from customers, clients, patients, or the public towards a worker, the employer could deal with the incident of workplace harassment by modifying its service (such as using the telephone or email as the primary means of contact), or even, in some cases, a refusal of service depending upon the circumstances.

Where the investigation finds that harassment arises from a worker, supervisor, or other person associated with the workplace, there can be consequences for the individual (such as apologies, education, counseling, shift changes, reprimands, suspension, job transfer, or termination) depending on the employer’s policy, the nature or severity of the behaviour and the circumstances. Actions may also be broader, especially where the investigation of an incident or complaint shows that workplace harassment is prevalent or commonplace. An example of action taken could be training for everyone in the workplace or in a department on what is unacceptable behaviour in the workplace.

The employer in the workplace harassment program may also want to address the role of other workplace parties. In a unionized workplace, the collective agreement may address the role of the union during an investigation.

It is also the employer’s duty to consult with the joint health and safety committee or the health and safety representative (if any) as the employer develops and maintains the workplace harassment program.

A template Workplace Harassment Program is attached to this Code of Practice as Schedule D.

Provision(s)

Occupational Health and Safety Act, s. 32.0.6 (1) and (2),

  • (1) An employer shall, in consultation with the committee or a health and safety representative, if any, develop and maintain a written program to implement the policy with respect to workplace harassment required under clause 32.0.1. (1) (b).
  • (2) Without limiting the generality of subsection (1), the program shall,
    • (a) include measures and procedures for workers to report incidents of workplace harassment to the employer or supervisor;
    • (b) include measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser;
    • (c) set out how incidents or complaints of workplace harassment will be investigated and dealt with;
    • (d) set out how 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 the purposes of investigating or taking corrective action with respect to the incident or complaint, or is otherwise required by law;
    • (e) set out how a worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, will be informed of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation; and
    • (f) include any prescribed elements.

Practice

To comply with this Part of the Code of Practice, the Workplace Harassment Program must be in writing and include all components in the Practice below. It must be developed and maintained in consultation with the joint health and safety committee or health and safety representative (if one is present in the workplace).

The workplace harassment program must be in writing.

The workplace harassment program must include all of the following:

A. Reporting

  1. Measures and procedures for workers to report workplace harassment to the employer or supervisor, including specific individual(s) or position(s) so that it is clear to whom workers should report or file a complaint of workplace harassment.
  2. Measures and procedures for workers to report workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser, so that it is clear to whom workers should report incidents of workplace harassment.
    • If the alleged harasser is a supervisor, the designated person may be a human resources representative, a department responsible for handling workplace harassment complaints, a health and safety consultant or other person designated by the employer.
    • If the employer is the alleged harasser, the employer must designate a person who is not under the direct control of the alleged harasser.
  3. The report of the incident must include the following information:
    • Name(s) of the complainant(s) and contact information
    • Name of the alleged harasser(s), position and contact information (if known)
    • Names of the witness(es) (if any) or other person(s) with relevant information to provide about the incident (if any) and contact information (if known)
    • Details of what happened including date(s), frequency and location(s) of the alleged incident(s)
      • Any supporting documents the worker who complains of harassment may have in his/her possession that are relevant to the complaint
      • List any documents a witness, another person or the alleged harasser may have in their possession that are relevant to the complaint.

B. Investigation and handling of a complaint

The program must indicate:

  1. The employer will ensure that an investigation appropriate in the circumstances will be conducted into complaints or incidents of workplace harassment.
  2. How an incident or complaint of workplace harassment will be investigated and dealt with including any interim measures and corrective action(s) that may be taken while the complaint or incident is being investigated.
  3. How an incident or complaint will be kept confidential to the extent possible. Information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless disclosure is necessary to protect workers, to investigate the complaint or incident, to take corrective action or otherwise as required by law.
  4. While the investigation is on-going, the worker who has allegedly experienced harassment, the alleged harasser(s) and any witnesses will be instructed not to discuss the complaint, incident or the investigation with other workers or witnesses unless necessary to obtain advice about their rights.
  5. A worker who has allegedly experienced harassment and the alleged harasser, if they are a worker of the employer, will be informed in writing of the results of the investigation and any corrective action that has been taken or that will be taken.
  6. When an external person will be retained to conduct a workplace harassment investigation (for example, but not limited to, when the alleged harasser is a president, owner, high-level management or senior executive).

C. Record keeping

  1. The program must indicate how the employer will keep records of all complaints or incidents of workplace harassment including:
    1. a copy of the complaint or details about the incident;
    2. a record of the investigation including notes;
    3. copy of witness statements, if taken;
    4. a copy of the investigation report, if any;
    5. a copy of the results of the investigation that were provided to the worker who reported workplace harassment and the alleged harasser; and
    6. a copy of any corrective action taken to address the complaint or incident of workplace harassment.
  2. The documents associated with a workplace harassment complaint, incident and/or investigation must not be disclosed unless necessary to investigate an incident or complaint of workplace harassment, take corrective action or otherwise as required by law.
  3. For the OHSA purposes, records must be kept for at least one year from the conclusion of the investigation.

Duty to consult with the joint health and safety committee or health and safety representative

The employer must develop and maintain the written workplace harassment program in consultation with the joint health and safety committee or health and safety representative (if any).

The consultation must provide an opportunity for the joint health and safety committee or health and safety representative (if any) to provide feedback, whether orally or in writing, on the program and the feedback must be considered by the employer.

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