Bill 132 took effect in Ontario on September 8, 2016. Bill 132 amends the Occupational Health and Safety Act. Employers must now investigate a workplace harassment complaint in a manner “appropriate to the circumstances.”
What does this mean?
As a general practice, the investigation should be completed within 90 days (absent extenuating circumstances). The investigator must not be the employer or under the direct control of the employer. In other words, the investigator must be objective and impartial.
The investigator must disclose identifying information only to the extent necessary to conduct the investigation; thoroughly interview the employee and the alleged offender and give him an opportunity to respond to the specific allegations raised by the employee.
The investigator must prepare a written report summarizing steps of the investigation, the complaint, the response, and the evidence; he must make findings of fact and conclude whether harassment occurred. The report is then handed to the person who will actually make the decision to take action.
The employer must provide the employee the results of the investigation in a summary form.
Bill 132 enforcement
Prior to Bill 132, the Minister of Labour’s powers were limited to ordering an employer to implement a workplace harassment policy and procedure. Bill 132 significantly expands remedial orders and penalties the Minister of Labour can impose if an employer fails to appropriately investigate workplace harassment.
Furthermore, the inspector may order the employer to retain an independent investigator at the employer’s expense to conduct an investigation and provide a written report.
Are you ready?
Have you developed policies and procedures to prevent harassment and violence in the workplace? Are all your employees trained on policy, reporting and investigation process? How you will handle your next (or first) harassment complaint?
Educating your employees around sexual harassment and developing strong policies and procedures to deter it are the most effective means of minimizing its occurrence and impact.
We are still at the early days of Bill 132. Expect to see an increase in harassment complaints to the Ministry of Labour. It is critically important to conduct an investigation properly and in the spirit of fairness.
Effectively managing the investigation and post-investigation process can reduce risks of potential liability resulting in hefty penalties and major damage to your employer’s brand.