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Workplace Harassment and Bullying is a major concern among employers and workers alike, therefore there are new regulations that will attempt to combat the issue. Effective July 1, 2020 employers have been required to comply with new Workplace Harassment Regulations that outline rights and responsibilities for all parties present in the workplace. To keep in line with other Canadian jurisdictions, the new regulations aim to define harassment to clarify what is unacceptable behavior in the workplace, and to set out the requirements of all employers to develop a policy to prevent workplace harassment.

Harassment by definition in the regulations reads;

“Any inappropriate conduct, comment, display, action or gesture or any bullying that the person responsible for the conduct, comment, display, action or gesture or the bullying knows, or ought reasonably to know, could harm a worker’s psychological or physical health or safety and includes;

Conduct that is based on any personal characteristic such as, but not limited to, race, creed, religion, colour, sex, sexual orientation, marital status, family status, disability, physical size or weight, age, nationality, ancestry or place of origin, gender identity or pregnancy, and;

Inappropriate sexual conduct that is known, or ought reasonably to be known, to the person responsible for the conduct to be unwelcome, including, but not limited to, sexual solicitations or advances, sexually suggestive remarks, jokes or gestures, circulating or sharing inappropriate images, or unwanted physical contact.”

The regulations also specify that these actions can be defined as harassment whether the incident occurs once or repeatedly. Harassment will also take on a new meaning today, as employees now have access to so many channels of social media and various other internet platforms.

Employees may face different forms of harassment and bullying in the workplace, whether it is being undermined by fellow employees, or receiving offensive or threatening emails from co-workers. Numerous unwanted behaviors can materialize in the workplace, ranging from offensive remarks to violence. It is very important to address a complaint of harassment or bullying as it affects the overall health and safety of an organization, if the issue is not confronted it can lead to absenteeism, turnover, and stress among other negative impacts in the workplace.

Developing a harassment and bullying policy for your workplace requires the organization to provide a safe and healthy environment for employees, as well as employees taking appropriate action against any individual in the workplace who harasses someone. These expectations must be met if necessary, as the employer can be held responsible for the harassment that is committed. Having a policy in place and providing anti-harassment training in the workplace for supervisors and staff can help avoid this. The Canadian Human Rights Commission recommends workplaces determine the individual in the organization who will be responsible for making decisions related to this policy. This individual should have training in harassment, whether they are a senior manager who is familiar with the workings of the organization or a human resources professional who is also familiar with the organization.

Another key piece to the new legislation is the streamlining of the investigation process. It is important that all allegations in the workplace are to be investigated as soon as possible, and that all the persons involved maintain confidentiality. It is not always easy to know what to do as an employee who wants to file a harassment or bullying complaint, it would be a good idea to advise them to keep a record of dates, names, times, and places of the incident. To establish harassment, the complainant must show that a reasonable person in the complainant’s position would have perceived the conduct or comments as harassing. Furthermore, the complainant must show that a reasonable person in the alleged harasser’s position would have known, or ought to have known, that the behavior was unwelcome. Managerial authority is often mistaken as workplace harassment, actions like changing work assignments, performance evaluations, and disciplinary actions when done reasonably should not be considered harassment.

When an employee has a complaint, it is important that if it is not in writing, that the individual or manager receiving the complaint records all the details very carefully. Details such as what happened; when it happened; where it happened; how often and who else was present (if applicable). The manager that receives the complaint will then have to inform the employee that the complaint has been made against, in writing, that a harassment complaint has been filed. The next step in the investigation process would be to try and resolve the issue with mediation. This step is only to be completed when it is considered appropriate for the situation, and the parties can be made available to meet with each other. The desired outcome for mediation is to have the two parties mutually agree to an acceptable resolution to the harassment complaint.

When mediation fails to resolve the complaint, or the situation deems it inappropriate a harassment investigation must be conducted. The person who conducts this interview must have the proper credentials to do so, and if there is not an individual that meets the criteria in the workplace, an external consultant may be the best alternate route. The designated interview person will meet with the alleged harasser, the complainant, and any possible witnesses to the alleged harassment. Interviewees should be allowed to review their statements to ensure their accuracy. When the interviews have concluded, the interviewer must prepare a report that includes the following;

• a description of the allegations;
• the response of the person the complaint was made against;
• a summary of information learned from witnesses (if applicable); and
• a decision about whether, on a balance of probabilities, the harassment did occur.

The report is to be submitted to the designated person in the policy that makes decisions on harassment complaints, that individual will decide on what action is appropriate. Remedies for the employee who was harassed may include an oral or written apology; compensation for lost wages; compensation for any lost employment benefits such as sick leave; and compensation for hurt feelings. Corrective action for the employee found to have engaged in harassment may include a reprimand; a suspension; a transfer; a demotion; and/or dismissal. All parties to the complaint should be advised, in writing, of the decision.

Writing an anti-harassment policy for your workplace can seem daunting when you first approach the subject. The most crucial detail about implementing a policy like this into your workplace is that everyone in the workplace is educated and informed on all details of the policy. The Workers Compensation Board of PEI has some excellent resources including frequently asked questions about the new regulations and templates to create your policy. It is important that your workplace updates this policy as required, and that when it is updated, staff are advised of the changes made.