Changes to the Occupational Health and Safety Act: Ready or not, here they come
By Paul Martin
Open the newspaper on any given day, and it would not be surprising to see a new story on a sexual harassment issue in the workplace (hint: think Ghomeshi).
Society is intolerant of this conduct. It appears the Ontario Government has listened. On March 8, 2016 Bill 132 (titled: “Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015”, received Royal Assent. The Bill will officially come into effect on September 8, 2016. Of importance to dentist employers, Bill 132 amends Bill 168 (Workplace Violence and Harassment) of the Occupational Health and Safety Act (“OHSA”), which previously came into effect in 2010, and creates significant new obligations for employers in Ontario.
Upon coming into effect in 2010, Bill 168 created obligations on employers regarding workplace violence and harassment, including developing and implementing appropriate policies and programs. However, Bill 168 did not contain an explicit provision dealing with sexual harassment. Further, a major deficiency in Bill 168 was that, although it created obligations for employers concerning harassment and violence, there was no real mechanism to enforce those provisions. As lawyers say, “it lacked teeth”. Well, no more. Bill 132 creates new obligations for employers surrounding the prevention, training, investigation and resolution of workplace harassment, particularly workplace sexual harassment. Bill 132 also provides the Ministry of Labour with significant powers to deal with matters of harassment, sexual harassment, and violence.
Harassment under Bill 168 was defined as: engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome. Bill 132 expands the definition of harassment under the OHSA, which now reads as follows:
“workplace harassment” means:
- engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or
- workplace sexual harassment
As you will see, “workplace sexual harassment” is now specifically prohibited by the OHSA. Workplace sexual harassment is defined under the OHSA as follows:
- 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
- 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.
The Ontario Human Rights Code and Bill 132
Sexual harassment has always been conduct prohibited by the Ontario Human Rights Code. Under the Code, sexual harassment constitutes discrimination on the basis of sex. An employee who experiences sexual harassment in the workplace can commence an application at the Human Rights Tribunal, seeking, amongst other things, damages related to the sexual harassment.
Further, cases from the Human Rights Tribunal of Ontario have stated that employers have a “duty to investigate” legitimate complaints of harassment in the workplace, when those complaints are linked to any enumerated ground (such as sex, race, religion, etc.). Failing to properly investigate legitimate complaints of harassment can result in liability for the employer.
With the advent of Bill 132, there are now two avenues available for an employee who has experienced sexual harassment in the workplace. While Bill 132 does not provide the Ministry of Labour with the authority to award monetary amounts to harassed employees (in contrast to the Human Rights Tribunal), it does provide the Ministry of Labour with the authority to order an employer to conduct an investigation into any complaints of harassment. The cost of this investigation is to be borne by the employer, and such investigations are not cheap. If an investigation is ordered, and sexual harassment is deemed to have occurred, the employee could rely upon this investigation in seeking damages from the Human Rights Tribunal.
Written Workplace Management Program
Bill 132 requires all employers to implement specific written programs in the workplace. These programs must:
- 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;
- set out how incidents or complaints of workplace harassment will be investigated and dealt with;
- 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;
- 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
- include any prescribed elements.
As noted above, Bill 168 required employers to have proper violence and harassment policies in place. However, simply having a written program on workplace harassment will no longer suffice, as Bill 132 confirms that such programs must also be implemented appropriately. An employer must now ensure:
- an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances;
- the worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, are informed in writing 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
- the program developed is reviewed as often as necessary, but at least annually, to ensure that it adequately implements the policy with respect to workplace harassment.
Dentist employers in Ontario should take steps to ensure they are in compliance with Bill 132 prior to September 8, 2016. Steps that should be taken include:
- Reviewing and updating existing Workplace Violence and Harassment Policies;
- Ensuring that Employers are aware of their responsibility to investigate allegations of sexual harassment, including training on how to investigate such complaints; and
- Training employees and staff on the new laws, to ensure that all staff are aware of their obligations with respect to sexual harassment in the workplace.
Issues of sexual harassment in the workplace are serious, and Bill 132 reflects society’s intolerance for such behavior. Employers must take steps to proactively deal with issues of sexual harassment, or face serious consequences if they fail to do so.
Are you ready to comply? We can help.
If you wish to have proper policies drafted, or have existing policies reviewed, please contact Matthew Wilton at firstname.lastname@example.org, or Paul Martin at email@example.com, or by phone at 416.860.9889.
*The foregoing is not intended to be legal advice and is provided for educational purposes only. You should retain a lawyer to seek advice prior to taking any legal steps.