A cultural shift over recent years has created more open discussion of the violence and harassment in the workplace. This discussion has expanded to include all kinds of workplaces and situations, with #MeToo capturing public attention and forcing businesses to carefully assess their environments. No business sector is immune: technology companies, retail, restaurants, services - all businesses need to be prepared to address the problem - for workplace functioning as well as legal reasons. Workplaces in Ontario are legally required to have comprehensive and enforced Workplace Violence and Harassment Policies, as well as established processes for workplace investigations.

In Ontario the law covering violence and harassment in the workplace is the Occupational Health and Safety Act (OHSA) which sets out minimum standards and describes the rights and responsibilities of organizations and individuals. The OHSA requires that employers have both workplace harassment as well as workplace violence policies, as well as programs and procedures to implement those policies, and review them at least once annually. Once there are regularly six or more workers in a workplace, the policies must be in written form and posted in a conspicuous location in the workplace. “Workers” are anyone who provides work or services for compensation - not just employees.

The Act functions on an internal responsibility system, which gives everyone a role to play in keeping workplaces safe and healthy. Workers who see a health and safety problem such as a hazard or contravention have a duty to report the situation to the employer or a supervisor. Employers and supervisors are, in turn, required to address those situations. According to the Occupational Health and Safety Act (as revised by Bill 197 in 2020):

Workplace violence means:

• The exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker

• An attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker

• A statement or behaviour that is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.

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.

• Workplace sexual harassment falls under this definition.

Workplace sexual harassment means:

• 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.

• 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.

Workplace harassment may include bullying, intimidating or offensive jokes or innuendos, displaying or circulating offensive pictures or materials, or offensive or intimidating phone calls.

Policies and programs

Employers must:

•   Assess the risk of workplace violence that may arise from the nature of the workplace, type of work or conditions of work

• Develop measures and procedures to control identified risks that are likely to expose a worker to physical injury

• Prepare policies with respect to workplace violence and workplace harassment accounting for their assessment

• Develop and maintain programs to implement their policies, and

• Provide information and instruction to workers on the contents of these policies and programs

• Review and update policies as often as is necessary, but at least once annually

Workplace violence training programs must include measures and procedures for:

• Summoning immediate assistance when workplace violence occurs or is likely to occur, and

• Controlling risks identified in the assessment of risks.

Both workplace violence and workplace harassment programs must include measures and procedures for workers to report incidents of workplace violence/harassment and set out how the employer will investigate and deal with incidents or complaints.

In addition to complying with Occupational Health and Safety requirements regarding workplace harassment and workplace violence policies and programs, a workplace should have a well-established process for conducting workplace investigations. A workplace investigation is a process, conducted by either the employer or on behalf of the employer, usually in response to an allegation or complaint of improper workplace conduct.  The investigation is a fact-finding effort and ultimately should enlighten and support decisions made by the employer.  The investigation may lead to disciplinary action, mediation, coaching, training, apologies, warnings or even suspensions or terminations.

Organizations should have a process for determining the initial reaction to an incident or allegation, including whether to proceed with an internal investigation or whether to engage an outside investigator. An appropriate investigation into a workplace harassment incident or complaint would generally be timely, fair, and address all relevant issues. Depending on the results of the investigation, employers may be required to take corrective actions to prevent a reoccurrence of workplace harassment. Corrective action may include apologies, education, counselling, shift changes, reprimands, suspension, job transfer, or termination. Workers alleging harassment are entitled to be informed of the results of any investigation or any corrective action that has been taken or that will be taken as a result of the investigation.

Main Takeaways

In Ontario, all employers are required to have both Workplace Harassment and Workplace Violence policies AND programs to implement those policies;

Creating a workplace culture where those policies are known and accepted by the entire organization is the best way to mitigate employer risk of allegations of a hostile workplace; and

Employers should have a plan in place for how to proceed with workplace investigations to respond to allegations of harassment or violence.

Set up a meeting with our team at Momentum to review the Workplace Harassment and Violence Policies and Procedures you have created to ensure they meet the requirements of the OHSA and are legally enforceable. If you don’t currently have policies and procedures in place, we can help you draft specific policies to fit your unique organization.