LANCASTER HOUSE - Labour Employment and Human Rights Law Publishers

Employers and unions know that complaints regarding harassment and violence must be investigated promptly, thoroughly and fairly, but the parties may not fully understand their obligations in light of recent developments in the law, notably Bill 168 amendments to the Occupational Health and Safety Act. This hands-on workshop will use small-group discussion of fact scenarios and Q&A sessions to outline the key roles and responsibilities of employers, employees and unions in successfully addressing complaints of violence and harassment in the workplace. The workshop will focus on such issues as:

Definitions: What is harassment? How does personal harassment differ from harassment prohibited by the Human Rights Code? What distinguishes harassment from mere annoyance? Can a single incident constitute harassment or does harassment necessarily concern a pattern of behaviour?
Domestic Violence: What is the employer obliged to do to protect an employee from domestic violence that could occur in the workplace? Is the employee responsible for reporting a risk of domestic violence that could occur at work?
Preventing Harassing Behaviours: What are an employer’s (and union’s) obligations to monitor and detect discriminatory conduct? What obligations do employers have under the Occupational Health and Safety Act to conduct risk assessments for violence and harassment in the workplace? What are useful components of an effective workplace violence prevention program?
Writing the Policy: What are the Occupational Health and Safety Act’s minimum requirements for violence and harassment policies? How can unions and employers work together to ensure that the policy is effective at combating harassment and violence, and consistent with the collective agreement and human rights legislation? What types of provisions are commonly included?
Dealing with Complaints: What legal responsibility do employers have to conduct an investigation into complaints of violence and harassment? Are certain complaints so minor or trivial that they do not need to be investigated? What liability do employers incur if they fail to conduct an investigation or conduct it improperly?
Union Members in Conflict: How should a union handle a complaint when one member of the bargaining unit has accused another member of harassment or violence? Must the union provide representation for accuser and accused? When will a union’s decision not to grieve the discipline of a harassing or violent employee violate the duty of fair representation?
Effect of Other Investigations: What is the effect of a civil action or a criminal investigation? Is it in the interest of the employer/employee to await completion of these proceedings? When is it appropriate/inappropriate to suspend an employee pending trial? What is the impact of a conviction, discharge or acquittal?
Interviews: What considerations should parties keep in mind when interviewing the complainant, the respondent and any witnesses? What pitfalls should be avoided in conducting an interview?
Procedural Protections: What procedural protections (as to confidentiality, non-reprisal, etc.) should be put in place for the employee subject to investigation, as well as for complainants and witnesses? Are complaints and witness statements privileged so that they cannot be used as evidence against the authors? Who is entitled to access to these statements?
Representation at Interviews: When is union representation required at an interview? Is union representation only necessary when the interview could result in the discipline of the employee being interviewed? What are the consequences for failure to allow/ensure the presence of a union adviser? To what extent should a union representative be permitted to participate? Take notes? Ask questions? Can a complainant employee hire a lawyer to represent him or her in dealing with the employer? Is the employee's lawyer entitled to be informed about the investigation, and to participate in it?
Employee Duties: Do employees have a duty to cooperate with an employer's harassment investigation? Can they be disciplined for refusing to answer the employer's questions? Are they required to respond to queries about another employee's misconduct?
Privacy and Confidentiality Issues: What types of evidence can employers seek from witnesses and employees? Can the employer use searches of employees' e-mail and/or video surveillance to investigate suspected harassment at the workplace? When is it considered reasonable to investigate conduct outside the workplace? Is it appropriate for an employer to access an employee’s Facebook page/blog in order to investigate allegations of harassment? Who is entitled to a copy of the investigation report, investigator's notes and other documents relied upon in the investigation? Which portions of the investigation report should be disclosed and which should be withheld under privacy legislation or based on privilege?
Human Rights Considerations: When employees engage in harassing or violent behaviour because of mental illness, how can employers and unions reconcile their duty to accommodate with the duty to provide a violence and harassment free workplace?