Workplace Investigations

Canada Labour Code Mandated Policy and Duty to Investigate

Effective January 1, 2021, Canada enacted new regulations and revised the Canada Labour Code 1 which expanded the legal obligations of employers with respect to the issue of preventing and responding to acts of harassment and conduct in the workplace.

The prior legislative terms were included in Part II of the Code dealing with matters concerning Occupational Health and Safety. “Harassment and Violence” was now defined to include:

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.

These revisions were accompanied by new requirements dealing with record keeping, reporting and steps of resolving the complaint. These include the following:

  1. The employer must conduct a workplace assessment to determine the existence of any factors which contribute to a risk of harassment or violence in the workplace. Within 6 months following the completion of this assessment, the employer must develop preventative measures designed to protect its employees from these risks. This report must be updated at least every 3 years in consultation with its relevant partner. 2 This is defined as follows: 0-19 employees: the health and safety representative; 20-299 employees: the workplace committee; 299+ employees: the policy committee. [/efn_ note]
  2. The employer must create a Workplace Harassment & Violence Policy which is to include the following terms, as set out below. This Policy is to be reviewed at least every 3 years in consultation with the applicable partner. An example is shown here.
    • a mission statement and a description of the roles of the employer, employees, “designated recipient” (the person to whom complaints are to be submitted) and applicable partner;
    • a list of internal and external factors that contribute to harassment and violence;
    • a summary of the mandatory training to be provided;
    • a summary of the resolution process for complaints, including the identity of the designated recipient and the manner in which the employer or designated recipient can be notified of harassment or violence in the workplace;
    • the reasons for which a review of the workplace assessment must be conducted;
    • a summary of emergency procedures in place;
    • the measures taken to protect the privacy of those involved in an occurrence of workplace harassment or violence;
    • a description of any recourse (in addition to recourse under the Code) available to those involved in an occurrence; and
    • a description of support measures available to the employees.
  1. Emergency procedures are to be developed, again in consultation with the relevant partner, which are to be used in the event of conduct, or a threat, of harassing or violent conduct which presents an immediate danger to the health or safety of an employee.
  2. The employer must develop and provide a training program for all employees which is adapted to the culture, conditions and activities of the workplace. This must include:
    • the elements of the Workplace Harassment and Violence Prevention Policy;
    • a description of the relationship between workplace harassment and violence and the prohibited grounds of discrimination in the Canadian Human Rights Act; and
    • information on how to recognize, minimize, and prevent harassment and violence.
    • the training program must be reviewed at least once every 3 years. It was mandated to be completed within one year following the effective date of the new law, that is, by January 1, 2022. All new employees must receive this training within three months of their start date.
  1. The employer must provide employees with details of medical, psychological and other support services available within the particular location of the business.
  2. A complaint and resolution process must also be developed. This format must include:
    • A system by which a complaint is presented to the employee’s supervisor or a designated recipient. This person must have requisite training, knowledge and experience. A past employee may make such a complaint provided that it is made within 3 months following the cessation of their employment.
    • The recipient of the complaint must reply within 7 days. This response must show the details of the complaint process and advise the complainant that they may be represented within this process. The same detail must be provided to the alleged wrongdoer.
    • Within 45 days following the receipt of the complaint, the supervisor or designated recipient must make efforts to resolve the complaint. The parties may also agree to appoint a person to mediate the complaint.
    • If the complaint is not resolved through the above process, an investigation must be conducted of the complainant so requests. This investigation must be undertaken by a person trained in the investigative process and who has knowledge, training and experience relevant to workplace harassment or violence and has knowledge of the Canada Labour Code and the Canadian Human Rights Act.
    • The report of the investigator must set out the description of the relevant events, a conclusion and a recommendation designed to eliminate or reduce the frequency of similar events in the future. The report must not reveal the identity of the persons involved. A copy is to be given to the complainant, the alleged offender and the relevant partner.
    • Following receipt of the report, the employer and relevant partner must jointly determine which of the recommendations of the report will be implemented and take steps to do so.
    • This process must be completed at least within one year from the making of the complaint and the employer must also provide monthly status reports to the relevant parties.
    • Any unresolved complaint must be referred directly to the Minister who must then investigate unless they determine that the complaint has been fairly dealt with, or is an abuse of process.
  3. The employer must keep records of steps taken to support enforcement measures and retain same for 10 years. This file must include the complaints, actions taken to respond to same and any reports of the investigators.
  4. Before March 1st of the relevant year, the employer must prepare an annual report to be provided to the Minister relevant to harassment or violence in the workplace. Such report must include:
    • The total number of such events and set out the number in each workplace location;
    • The number of such events which were related to sexual harassment or violence;
    • The number of events which were a prohibited ground of adverse treatment as set out in the Canadian Human Rights Act;
    • A description of the workplace relationship that existed between the complainant and the alleged wrongdoer;
    • The means used to resolve the complaints and the number of such events for each complaint;
    • The average time required to complete the resolution process.

These are significant amendments to the prior law and represent the most dramatic obligations of all Canadian jurisdictions.