Better investigations are needed to complement workplace safety law

By Tony Poland, LegalMatters Staff • While new legislation aimed at addressing harassment and violence in federally regulated workplaces is a step forward, more should be done to ensure a “more sophisticated approach” to investigations following a complaint, says Toronto employment lawyer Jeffrey M. Andrew.

Bill C-65, which took effect on Jan. 1, amends parts of the Canada Labour Code to provide guidance to employers when addressing worker complaints.

“We’re taking an important step forward to ensure that federally regulated workplaces – including the federally regulated private sector, the federal public service and parliamentary workplaces – are free from harassment and violence, including sexual harassment and sexual violence,” says Minister of Labour Filomena Tassi. “Every worker deserves a safe workplace, and by working together, we can make that a reality.”

Mirrors provincial changes

Andrew, partner with Cavalluzzo LLP, says the changes mirror legislation already in effect in Ontario to protect workers from violence and harassment.

“It was inevitable,” he tells LegalMattersCanada.ca. “I expect that large federal sector employers would already be doing what is covered in this legislation.

“This just proceduralizes it, making it a question of legal obligation,” Andrews adds.  “In my experience, many employers already take this responsibility seriously.”

According to the federal government, Bill C-65 defines harassment and violence as “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.”

Employment and Social Development notes there are three main pillars to the legislation:

·      preventing incidents of harassment and violence from occurring;

·      responding effectively to these incidents when they do occur; and

·      supporting victims, survivors and employers in the process.

Federally regulated workplaces that fall under Bill C-65 include banks, airlines, radio and television broadcasting and the telecommunications industry. 

Sets out expectations

“This legislation basically sets out that employers must take these allegations seriously and investigate because they are legally required to do that now,” says Andrew. “It doesn’t matter how big or small you are. This bill is really showing that there’s an expectation that any misconduct must be addressed.”

He says if he has a criticism of Bill C-65, it would be how complaints are sometimes handled.

“I wouldn’t say the regulations need more teeth but there could be a more sophisticated approach to investigations and employers’ responses,” says Andrew.

He says a cottage industry has sprung up of companies that investigate workplace complaints and the new legislation “will just provide more impetus for the growth of that sector.”

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A problem can arise with sloppy investigations or those that are not thorough enough.

“In my experience it’s a pretty mixed bag in terms of quality of the investigations,” says Andrew. “I have concerns that there can be a rush to judgment.

“It is almost like if there is a claim of improper conduct, It’s pretty rare that investigators don’t find something,” he adds. “I sometimes question the level of fact finding and analysis. It’s certainly not the sort of quality that I believe can be found from adjudicators in legal settings such as courts, arbitrations or human rights tribunals.” 

Andrew says the real problem arises when the employer, who is “scared of being publicly or legally found at fault has an extreme reaction” following an investigation.

He uses the example of someone who loses his temper and threatens a coworker.

‘Should be taken seriously’

“It is a threat of violence and it should be taken seriously” Andrew says. “But if it is an isolated incident, they don’t actually do anything to follow up on it, and they are appropriately apologetic, what is the proper response? Many employers would just terminate them and I believe that’s not necessarily always the right course of action.”

With the company’s reputation and economic future at stake, he says he can understand why some employers would find it more palpable to take a hard line when a violation occurs.

“Employers don’t always make fine distinctions anymore,” says Andrew. “And in my view, they are often more concerned with denunciation and in liability reduction than making improvements in the workplace, including improving the behaviour of people.

“There are times when people are engaged in behaviours that are so extreme that there’s really no question that some sort of punitive response is necessary,” he adds. “However, mediocre investigations can lead to poor decision making on the part of employers who tend to take extreme measures rather than focusing on restorative justice.”