I am experiencing harassment
What recourses are available?
I am not in a union
My job is under provincial regulations (Quebec)
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I am experiencing sexual harassment
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Internal complaint
If the situation allows, a complaint may be lodged with the employer.
Pursuant to Article 81.19 of the Act Respecting Labour Standards, the employer has an obligation to take reasonable measures to put a stop to harassment and must adopt a policy for processing complaints.
Complaint to the CNESST
Pursuant to Article 123.6 of the Act Respecting Labour Standards (A.R.L.S.), an employee who believes they are the victim of harassment can lodge a complaint in writing to the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST) (Commission for workplace standards, fairness, health and safety). Harassment is defined in Article 81.18 of the A.r.l.s.
Sexual harassment is considered to be similar to psychological harassment.
Who can lodge a complaint?
A person must be employed within the meaning of Article 1 of the A.r.l.s. This means that it concerns a person who is not a union member, who receives a salary in exchange for a performance of work within the context where there exists a hierarchical relationship.
Managers and directors are equally protected by the law (Art. 81.20 A.r.l.s.).
There must also be a connection to the territory of Québec within the meaning of Article 2 of the A.r.l.s.
Deadline for lodging a complaint
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The complaint must be lodged within the two (2) years following the event which marked the last occurrence of the harassment (Art. 123.7 A.r.l.s.).
Who to lodge a complaint against?
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The complaint is lodged against the employer because the employer has the obligation to guarantee an environment without harassment and to take appropriate measures to put an end to harassment.
Proof of harassment
The proof of harassment falls to the person who lodges the complaint. They must convince the Tribunal that their version of events is the most probable based on the balance of probabilities. We often say that the judge must be convinced to “50%+1” that there is more chance that it is the version given by the complainant party which is true rather than that of the employer.
The proof is made principally through testimony (namely by posing questions to the people concerned on the facts which they have personal knowledge of) and can also include written evidence (for example, email exchanges or text message) and even, though more rare, through audio or video recordings (insofar as there is not a breach of the right to privacy).
Overview of the procedure
Assessing the admissibility of the complaint – The first stage consists of filing a version of the facts describing the events experienced. The CNESST then assesses the complaint to ensure that the criteria of the law have been met. This concerns, specifically, compliance with the Deadline for lodging a complaint, the employee’s status and the fact that the criteria for harassment appear at first sight from the version of facts.
If the complaint is rejected, it will be possible to request a review within 30 days following the decision. If the request for a review is also rejected, the complaint will be transferred to the Administrative Labour Tribunal.
Mediation option – If the complaint is admissible, mediation will be offered to the parties. Mediation is free and voluntary, it is never mandatory. Recourse to mediation is possible at all stages of the process.
Investigation – If mediation does not take place or if the parties do not agree, an investigator from the CNESST will assess the case. This person may, specifically, meet with the parties and the witnesses or visit the workplace. The investigation aims to determine if the situation justifies transferring the case to the Administrative Labour Tribunal by offering the services of a lawyer, free-of-charge, to the complainant party.
If the investigation is declared unsuccessful, it is possible to request a review within 30 days following the decision. If the request for a review is rejected, the complaint will be sent to the Administrative Labour Tribunal.
Administrative Labour Tribunal – Only the Tribunal can rule on whether workplace harassment occurred. To decide on this, the parties are invited to a hearing where they must present their proof and have their testimonies heard.
⇒ For more information about the procedure to follow for the CNESST
Complaint to the CDPDJ
Pursuant to Article 74 of the Charter of Human Rights and Freedoms (Charter), a person who believes they are the victim of sexual harassment can lodge a written complaint to the Commission des droits de la personne et des droits de la jeunesse (CDPDJ). Sexual harassment is considered to be discrimination based on sex.
Who can lodge a complaint?
Any person in the matters that come under the legislative authority of Québec (Art. 55 Charter).
Any person may lodge a complaint to the CDPDJ with the exception of persons employed by a federal institution or company, such as for example banks, the postal services, telecommunications companies and radio and TV broadcasters.
⇒ For more information about the list of industries and workplaces under federal regulations
Deadline for lodging a complaint
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The complaint must be lodged within the two (2) years following the event which marked the last occurrence of the harassment (Art. 77(2) Charter).
Who to lodge a complaint against?
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The complaint may be lodged against both the employer and the person who conducted the harassment.
Proof of harassment
The person making the complaint has the burden of demonstrating their version of events according to the balance of probabilities. In other words, the person must convince the Tribunal that it is more than likely (50% + 1) that they were a victim of harassment based on one of the grounds prohibited by the Charter of Human Rights and Freedoms.
For example, when the CDPDJ receives a complaint, an investigator searches for evidence, whether in the form of testimony, collection of documents, etc. In general, any evidence relevant and useful to a claim may be used.
Overview of the procedure
Filing and assessing the admissibility of the complaint – The first stage consists of filing a version of the facts describing the events experienced. The CDPDJ then assesses the complaint to ensure that the criteria of the law have been met.
Mediation option – If the complaint is admissible, mediation will be offered to the parties.
Investigation – If the mediation fails, the CDPDJ will conduct an investigation into the case.
⇒ For more information about how a CDPDJ investigation proceeds
Proposed measures of redress – If the complaint is judged to be well-founded under the terms of the investigation, the Commission will propose measures of redress. If these measures are followed, the process comes to an end.
Non-compliance with the measures of redress – If the measures of redress proposed by the Commission are not followed, the Commission may bring the case before the Human Rights Tribunal for a decision to be made.
⇒ To find out more about the procedure to follow for the CDPDJ
I am experiencing psychological harassment
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Internal complaint
If the situation allows, a complaint may be lodged with the employer.
Pursuant to Article 81.19 of the Act Respecting Labour Standards, the employer has an obligation to take reasonable measures to put a stop to harassment and must adopt a policy for processing complaints.
Complaint to the CNESST
Pursuant to Article 123.6 of the Act Respecting Labour Standards (A.r.l.s.), an employee who believes they are the victim of harassment can lodge a complaint in writing to Commission des normes, de l’équité salariale, de la santé et de the sécurité du travail (CNESST) (Commission for workplace standards, fairness, health and safety). Harassment is defined in Article 81.18 of the A.r.l.s.
Who can lodge a complaint?
A person must be employed within the meaning of Article 1 of the A.r.l.s. This means that it is a person who is not a union member, who receives a salary in exchange for a performance of work within a context where there exists a hierarchical relationship.
Managers and Directors are equally protected by the law (Art. 81.20 A.r.l.s.)
There must also be a connection to the territory of Québec within the meaning of Article 2 of the A.r.l.s.
Deadline for lodging a complaint
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The complaint must be lodged within the two (2) years following the event which marked the last occurrence of the harassment (Art. 123.7 A.r.l.s.).
Who to lodge a complaint against?
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The complaint is lodged against the employer because the employer has the obligation to guarantee an environment without harassment and to take appropriate measures to put an end to harassment.
Proof of harassment
The proof of harassment falls to the person who lodges the complaint. They must convince the Tribunal that her version of events is the most probable based on the balance of probabilities. It is often said that the judge must be convinced to “50%+1” that there is more chance that it is the version given by the complainant party which is true rather than that of the employer.
The proof is made principally through testimony (namely by posing questions to the people concerned on the facts which they have personal knowledge of) and can also include written evidence (for example, email exchanges or text message) and even, though more rare, through audio or video recordings (insofar as there is not a breach of the right to privacy).
Overview of the procedure
Assessing the admissibility of the complaint – The first stage consists of filing a version of the facts describing the events experienced. The CNESST then assesses the complaint to ensure that the criteria of the law have been met. This concerns, specifically, compliance with the Deadline for lodging a complaint, the employee’s status and the fact that the criteria for harassmentappear at first sight from the version of facts.
If the complaint is rejected, it will be possible to request a review within 30 days from the decision. If the request for a review is also rejected, the complaint will be transferred to the Administrative Labour Tribunal.
Mediation option – If the complaint is admissible, mediation will be offered to the parties. Mediation is free and voluntary, it is never mandatory. Recourse to mediation is possible at all stages of the process.
Investigation – If mediation does not take place or if the parties do not agree, an investigator from the CNESST will assess the case. This person may, specifically, meet with the parties and the witnesses or visit the workplace. The investigation aims to determine if the situation justifies transferring the case to the Administrative Labour Tribunal by offering the services of a lawyer, free-of-charge, to the complainant party.
If the complaint is rejected, it will be possible to request a review within 30 days from the decision. If the request for a review is rejected, the complaint will be sent to the Administrative Labour Tribunal.
Administrative Labour Tribunal – Only the Tribunal can rule on whether workplace harassment occurred. To decide on this, the parties are invited to a hearing where they must present their proof and have their testimonies heard.
⇒ For more information about the procedure to follow for the CNESST
I am experiencing discriminatory harassment
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Internal complaint
If the situation allows, a complaint may be lodged with the employer.
Pursuant to Article 81.19 of the Act Respecting Labour Standards, the employer has an obligation to take reasonable measures to put a stop to harassment and must adopt a policy for processing complaints.
Complaint to the CDPDJ
Pursuant to Article 74 of the Charter of Human Rights and Freedoms (Charter), a person who believes they are the victim of discriminatory harassment can lodge a written complaint to the Commission des droits de la personne et des droits de la jeunesse (CDPDJ).
Reasons for discrimination
Article 10 of the Charter defines discrimination as a “distinction, exclusion or preference” and lists the following grounds:
• Race, colour, ethnic or national origin and language;
• Sex, gender identity or expression and sexual orientation;
• Pregnancy;
• Civil status;
• Age;
• Religion and political convictions;
• Social position;
• Disability.
Who can lodge a complaint?
Any person in the matters that come under the legislative authority of Québec (Art. 55 Charter).
Deadline for lodging a complaint
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The complaint must be lodged within the two (2) years following the event which marked the last occurrence of the harassment (Art. 77(2) Charter).
Who to lodge a complaint against?
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The complaint may be lodged against both the employer and the person who harasses.
Proof of harassment
The person making the complaint has the burden of demonstrating their version of events according to the balance of probabilities. In other words, they must convince the Tribunal that it is more than likely (50% + 1) that they were the victim of harassment based on one of the grounds prohibited by the Charter of Human Rights and Freedoms.
For example, when the CDPDJ receives a complaint, an investigator searches for evidence, whether in the form of testimony, collection of documents, etc. In general, any evidence relevant and useful to a claim may be used.
Overview of the procedure
Filing and assessing the admissibility of the complaint – The first stage consists of filing a version of the facts describing the events experienced. The CDPDJ then assesses the complaint to ensure that the criteria of the law have been met.
Mediation option – If the complaint is admissible, mediation will be offered to the parties.
Investigation – If the mediation fails, the CDPDJ will conduct an investigation into the case.
Proposed measures of redress – If the complaint is judged to be well-founded under the terms of the investigation, the Commission will propose measures of redress. If these measures are followed, the process comes to an end.
Non-compliance with the measures of redress – If the measures of redress proposed by the Commission are not followed, the Commission may bring the case before the Human Rights Tribunal for them to rule thereon.
⇒ To find out more about the procedure to follow for the CDPDJ
My job is under federal regulations
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I am experiencing sexual harassment
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Internal complaint
The Canada Labour Code states the overall obligation for the employer to take the prescribed measures and to prevent and sanction conduct of harassment and violence in the workplace, to react to incidents of workplace harassment and violence, and to provide support to employees who are victims of workplace harassment and violence.
Pursuant to Part II of the Canada Labour Code, harassment and violence denotes “any action, conduct or comment, specifically of a sexual nature, that can reasonably be expected to cause offence or humiliate an employee or cause them any other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment. "
This includes all types of harassment and violence, including sexual harassment, sexual violence and domestic violence.
The Workplace harassment and violence prevention regulations (the Regulations) stipulate that a policy to this effect should be adopted and displayed by the employer (Article 10.1). This policy must contain the essential elements of a workplace harassment and violence prevention policy, as well as the procedures to be put in place to intervene when incidents of harassment and violence occur (Article 10.2).
Article 11.1 of the Regulations provides that the employer must jointly develop with the applicable partner emergency procedures to be implemented if an occurrence poses an immediate danger to the health and safety of an employee or if there is a threat that such an incident may occur.
Article 11.3 of the Regulations provides that after every implementation of the emergency procedures, the employer and the applicable partner must, jointly, review these emergency procedures and, if necessary, update them.
Article 20 of the Regulations provides that the employer or the designated recipient must, within seven days after the day on which notice of an occurrence is provided, contact the principal party to inform them:
a) that their notice has been received or that they have been named or identified as the principal party in the notice provided by a witness, as the case may be;
b) of the manner in which the work place harassment and violence prevention policy is accessed;
c) of each step of the resolution process;
d) that they may be represented during the resolution process.
⇒ For more information about the Workplace harassment and violence prevention regulations
Complaint to the CCDP
Pursuant to Article 40 of the Canadian Human Rights Act, a person who believes they are the victim of sexual harassment can lodge a complaint with the Canadian Human Rights Commission (CHRC).
Article 14(2) of said Act states that sexual harassment is considered to be based on a ground of discrimination.
Who can lodge a complaint?
Any person in the matters that come under the legislative authority of Canada.
Deadline for lodging a complaint
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Article 41 of the Canadian Human Rights Act provides that the complaint must be lodged at the latest one (1) year after the fact which marked the last occurrence of the harassment.
Who to lodge a complaint against?
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The complaint is lodged against the person who is the subject of the complaint and against the employer.
The principle of exhausting all recourse
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Pursuant to Article 41 of the Canadian Human Rights Act, the CHRC may conclude that a complaint is inadmissible if they believe that other recourses should have been exhausted first. This may concern, specifically, internal recourses, grievance settlement or recourse in accordance with another law.
Overview of the procedure
Filing and assessing the admissibility of the complaint – The first stage consists of filing a version of the facts describing the events experienced. The CHRC then assesses the complaint to ensure that the criteria of the law have been met.
Mediation option – If the complaint is admissible, mediation is offered to the parties.
Investigation – If mediation fails, an agent will conduct an investigation into the case and will present a report to the Commission.
Commission Decision – After studying the report, the Commission may either reject the complaint, send it for conciliation, bring it before the Canadian Human Rights Tribunal for it to deliver a decision, or return the case for further investigation.
⇒ To find out more about the procedure to follow for the CHRC
I am experiencing psychological harassment
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Internal complaint
The Canada Labour Code provides a general obligation for the employer to take prescribed measures to prevent and counteract workplace harassment and violence, to react following incidents of workplace harassment and violence and to offer support to employees affected by workplace harassment and violence.
Pursuant to Part II of the Canada Labour Code, harassment and violence denotes any action, conduct or comment, particularly of a sexual or violent 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. "
This includes all types of harassment and violence, including sexual harassment, sexual violence and domestic violence.
The Workplace harassment and violence prevention regulations (the Regulations) provide that a policy to this effect should be adopted and displayed by the employer (Article 10.1). This policy must contain the essential elements of a workplace harassment and violence prevention policy, as well as the procedures to be put in place to intervene when incidents of harassment and violence occur (Article 10.2).
Article 11.1 of the Regulations provides that the employer must jointly develop, with the applicable partner, emergency procedures to be implemented if an occurrence poses an immediate danger to the health and safety of an employee or if there is a threat that such an incident may occur.
Article 11.3 of the Regulations provides that after every implementation of the emergency procedures, the employer and the applicable partner must, jointly review and, if necessary, update them.
Article 20 of the Regulations provides that the employer or the designated recipient must, within seven days after the day on which notice of an occurrence is provided, contact the principal party to inform them:
a) that their notice has been received or that they have been named or identified as the principal party in the notice provided by a witness, as the case may be;
b) of the manner in which the work place harassment and violence prevention policy is accessed;
c) of each step of the resolution process;
d) that they may be represented during the resolution process.
⇒ For further information on the Workplace harassment and violence prevention regulations
I am experiencing discriminatory harassment
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Complaint to the CCDP
Pursuant to Article 40 of the Canadian Human Rights Act, a person who believes they are the victim of discriminatory harassment can lodge a complaint with the Canadian Human Rights Commission (CHRC).
Reasons for discrimination
The following grounds for discrimination are listed in Article 3 of said Act:
• Race, national or ethnic origin, colour;
• Age;
• Sex, sexual orientation, gender identity or expression;
• Marital status, family status, pregnancy, child-birth;
• Genetic characteristics, disability or impairment.
Who can lodge a complaint?
Any person in the matters that come under the legislative authority of Canada.
Deadline for lodging a complaint
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Article 41 of the Canadian Human Rights Act provides that a complaint must be lodged at the latest one (1) year after the fact which marked the last occurrence of the harassment.
Who to lodge a complaint against?
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The complaint is lodged against the person who is the subject of the complaint and against the employer.
The principle of exhausting all recourse
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Pursuant to Article 41 of the Canadian Human Rights Act, the CHRC may conclude that a complaint is inadmissible if they believe that other recourses should have been exhausted first. This may concern, specifically, internal recourses, grievance settlement or recourse in accordance with another law.
Overview of the procedure
Filing and assessing the admissibility of the complaint – The first stage consists of filing a version of the facts describing the events experienced. The CHRC then assesses the complaint to ensure that the criteria of the law have been met.
Mediation option – If the complaint is admissible, mediation is offered to the parties.
Investigation – If mediation fails, an agent will conduct an investigation into the case and will present a report to the Commission.
Commission Decision – After studying the report, the Commission may either reject the complaint, send it for conciliation, bring it before the Canadian Human Rights Tribunal for it to deliver a decision, or return the case for further investigation.
⇒ To find out more about the procedure to follow for the CHRC
Internal complaint
The Canada Labour Code states the overall obligation for the employer to take the prescribed measures and to prevent and sanction conduct of harassment and violence in the workplace, to react to incidents of workplace harassment and violence, and to provide support to employees who are victims of workplace harassment and violence.
Pursuant to Part II of the Canada Labour Code, harassment and violence denotes “any action, conduct or comment, specifically of a sexual nature, that can reasonably be expected to cause offence or humiliate an employee or cause them any other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment. “
This includes all types of harassment and violence, including sexual harassment, sexual violence and domestic violence.
The Workplace harassment and violence prevention regulations (the Regulations) provide that a policy to this effect should be adopted and displayed by the employer (Article 10.1). This policy must contain the essential elementsof a workplace harassment and violence prevention policy, as well as the procedures to be put in place to intervene when incidents of harassment and violence occur (Article 10.2).
Article 11.1 of the Regulations provides that the employer must jointly develop with the applicable partner emergency procedures to be implemented if an occurrence poses an immediate danger to the health and safety of an employee or if there is a threat that such an incident may occur.
Article 11.3 of the Regulations provides that after every implementation of the emergency procedures, the employer and the applicable partner must, jointly, review these emergency procedures and, if necessary, update them.
Article 20 of the Regulations provides that the employer or the designated recipient must, within seven daysafter the day on which notice of an occurrence is provided, contact the principal party to inform them:
a) that their notice has been received or that they have been named or identified as the principal party in the notice provided by a witness, as the case may be;
b) of the manner in which the work place harassment and violence prevention policy is accessed;
c) of each step of the resolution process;
d) that they may be represented during the resolution process.
⇒ For more information about the Workplace harassment and violence prevention regulations.
I am a union member
My job is under provincial regulations (Quebec)
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Internal complaint
If the situation allows, a complaint may be lodged with the employer. Pursuant to Article 81.19 of the Act Respecting Labour Standards, the employer has the obligation to take reasonable measures to put a stop to the harassment and to adopt a policy for processing complaints.
Article 81.20 of the Act Respecting Labour Standards (A.r.l.s.) provides that the provisions on matters concerning harassment are deemed to be an integral part of every collective agreement. The unionized employee therefore has the same rights, and their employer is also subject to correlative obligations.
Lodging a grievance for harassment and arbitration
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A grievance for harassment may be lodged with your union. Thereafter, the grievance could be submitted for arbitration. The procedure will vary depending on the collective agreement.
Article 81.20 of the Act Respecting Labour Standards (A.r.l.s.) provides that the provisions on matters concerning harassment are deemed to be an integral part of every collective agreement. The unionized employee therefore has the same rights, and their employer is also subject to correlative obligations.
Deadline for lodging a grievance
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The grievance must be lodged within the two (2) years following the event which marked the last occurrence of the harassment (Art. 123.7 A.r.l.s.). However, it is possible that a much longer deadline is granted by the collective agreement.
Who can a grievance be lodged against?
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The grievance is brought against the employer.
Arbitration
If the parties do not manage to settle the case between them, the grievance will be submitted for arbitration. The arbitration resembles a hearing and the arbitrator acts to a large extent like a judge. This is the instance where the grievance is decided on after having presented the proof and heard the testimonies.
Duty of union representation
Article 47.2 of the Labour Code provides that the union “must not act in bad faith or in an arbitrary or discriminatory manner or show negligence”.
A union must not breach their duty of representation when it decides not to submit the grievance for arbitration if, in good faith and after an investigation, it believes that the grievance is unfounded.
Lack of duty of representation
Article 47.3 of the Labour Code provides that a person may file a complaint to the Administrative Labour Tribunal if they believe that their union has breached their duty of representation. The Tribunal will rule solely on the alleged failure and not on the grievance for harassment.
Proof of harassment
The burden of proof for the harassment falls to the person who lodges the grievance. This person must convince the Tribunal that their version of events is the most probable based on the balance of probabilities. The arbitrator must be convinced to “50%+1” that there is more chance that it is the version given by the complainant party which is true rather than that of the employer.
My job is under federal regulations
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Internal complaint
The Canada Labour Code outlines the general obligation for the employer to take regulatory measures to prevent and counteract workplace harassment and violence, to follow up on incidents of workplace harassment and violence and to offer support to employees affected by workplace harassment and violence.
Pursuant to Part II of the Canada Labour Code, harassment and violence denotes “any action, conduct or comment, specifically of a sexual nature, that can reasonably be expected to cause offence or humiliate an employee or cause them any other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment. "
This includes all types of harassment and violence, including sexual harassment, sexual violence and domestic violence.
The Workplace harassment and violence prevention regulations (the Regulations) provide that a policy to this effect should be adopted and displayed by the employer (Article 10.1). This policy must contain the essential elementsof a workplace harassment and violence prevention policy, as well as the procedures to be put in place to intervene when incidents of harassment and violence occur (Article 10.2).
Article 11.1 of the Regulations provides that the employer must jointly develop with the applicable partner emergency procedures to be implemented if an incident poses an immediate danger to the health and safety of an employee or if there is a threat that such an incident may occur.
Article 11.3 of the Regulations provides that after every implementation of the emergency procedures, the employer and the applicable partner must, jointly, review these emergency procedures and, if necessary, update them.
Article 20 of the Regulations provides that the employer or the designated recipient must, within seven days after the day on which notice of an incident is provided, contact the principal party to inform them:
a) that their notice has been received or that they have been named or identified as the principal party in the notice provided by a witness, as the case may be;
b) of the manner in which the work place harassment and violence prevention policy is accessed;
c) of each step of the resolution process;
d) that they may be represented during the resolution process.
⇒ For more information about the Workplace harassment and violence prevention regulations
Lodging a grievance for harassment and arbitration
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A grievance for harassment may be lodged with your union. Thereafter, the grievance could be submitted for arbitration. The procedure will vary depending on the collective agreement.
The Canada Labour Code provides that the provisions on matters concerning harassment are deemed to be an integral part of every collective agreement. The unionized employee therefore has the same rights, and their employer is also subject to correlative obligations.
Other recourse
Complaint about a prohibited practise to the CNESST
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A prohibited practise is a measure taken by the employer against an employee specifically due to the exercising of a right under the Act Respecting Labour Standards (A.r.l.s.). For example, Article 122 of said law protects the employee from reprisals which they may be subjected to for having lodged a complaint or for having cooperated in an investigation by the Commission des normes, de l’équité et de la santé et de la sécurité au travail (CNESST).
Who can lodge a complaint?
A person must be employed within the meaning of Article 1 of the A.r.l.s. This means it concerns a person who is not a union member, who receives a salary in exchange for a performance of work within a context where there exists a hierarchical relationship.
There must also be a connection to the territory of Québec within the meaning of Article 2 of the A.r.l.s.
In contrast to recourse against a dismissal without just and reasonable cause, two years’ seniority is not required.
*Note: a unionized person may file a grievance to their union.
Deadline for lodging a complaint
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The complaint must be lodged within 45 days following the prohibited practise (Art. 123 A.r.l.s.).
Examples
• Suspension: We could think that it involves a prohibited practise if, for example, you say to your employer that you have to take sick leave and they suspend you two days after you return to work.
• Moving location or changing the tasks and conditions of work: If, after filing a complaint for harassment, your employer requires you to work in a different subsidiary which is difficult to access or if they change your day shift to a night shift, this could be a prohibited practise.
• Discriminatory measures: If you cooperate in an investigation by the CNESST and, a little time afterwards, your employer stops including you in team activities or meetings, this could involve a prohibited practise.
• Reprisals: If one of your colleagues makes you feel unconformable because s/he touches you constantly despite your rejection and, when you share this with your employer, they reduce your working hours, this could be a form of reprisals.
Complaint about dismissal without just and sufficient cause to the CNESST
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Article 124 of the Act Respecting Labour Standards provides that a person may lodge a complaint to the Commission des normes, de l’équité et de la santé et de la sécurité au travail if they believe they have been subject to a dismissal without just and sufficient cause.
⇒ For more information about dismissal without just and sufficient cause
Who can lodge a complaint?
A person must have cumulated two (2) years of continued service in the same company to be considered as employed within the meaning of Article 1 of the A.r.l.s. This means it is a person who is not a union member, who receives a salary in exchange for a performance of work within a context where there exists a hierarchical relationship. In addition, they do not need to file another procedure for compensation.
Deadline for lodging a complaint
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The Deadline for lodging a complaint is 45 days following the dismissal.
Complaint about constructive dismissal
Constructive dismissal results from a series of actions or a significant change, solely on the employer’s initiative, to the essential conditions in the employment contract which demonstrate that the employer no longer intends to be bound by the contract. Dismissal, therefore, becomes the only alternative.
We could therefore invoke either a prohibited practise, or a dismissal without just or sufficient cause to support recourse for constructive dismissal.
Examples
Note: The analysis of the facts in support of a constructive dismissal still depends on the circumstances. The same fact could be considered as constructive dismissal in one case but not in another.
• Demotion;
• Substantial changes to tasks;
• Considerable reduction (or increase) in tasks or working hours;
• Refusal to reintegrate an employee following sick leave;
• Changing the place where the work is performed.
Particular situation
What if you are not protected by the Act respecting labor standards ?
"It depends on your situation. Other laws may protect you against psychological harassment. For example, the Canada Labour Code protects people who work in businesses covered by federal laws against harassment.
There are also laws that protect against discriminatory harassment, which is harassment of a person because of race, sex, colour, religion, etc. For this type of harassment, self-employed workers can complain to the Commission des droits de la personne et des droits de la jeunesse. Workers in businesses covered by federal laws can complain to the Canadian Human Rights Commission. If the harassment destroys your reputation, you may be able to sue the person harassing you for damage to your reputation.
If it’s a crime, you can file a complaint with the police.
You can consult a legal professional to find out your options."
Source: "Psuchological Harassment in the Workplace", Éducaloi
⇒ For more information on the status of self-employed worker
I am a witness of workplace harassment
If you report a situation of harassment, the law will protect you. An employer does not have the right to carry out reprisals against you or impose sanctions on you for these reasons. If they do so, this will be a prohibited practise which could be the subject of a complaint.
⇒ Consult the section: Complaint for a prohibited practise to the CNESST
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It is often difficult to know if you are experiencing a situation of harassment. As a witness, you can help the person who is a victim to realize what is happening to them.
Basic advice
Intervene in a situation
If you feel comfortable to do so and your safety is not threatened, you could intervene to try to mitigate the situation or bring it to an end. For example, you could express the fact that the atmosphere is tense and ask for a return to calm. You could also express that such a way of behaving is not appropriate in the workplace.
Give your support
You could give support to a person who is experiencing harassment by listening to them, by referring them to resources which are able to help them, by encouraging them to report the situation and by reassuring them that you will be there for them. When a person confides in you, welcome them with an open mind and without judgement.
Report the situation
You could report the harassment to your employer. Pursuant to the Act Respecting Labour Standards, all employees have the right to a workplace free from harassment. When harassment is reported to the employer, the employer is obliged to take appropriate measures to make it stop.
Even if you are not directly targeted by the harassment behaviour, the fact remains that your workplace could still be affected by it. This type of conduct makes people who witness it feel uncomfortable and harms a healthy work environment.
I am unwell due to harassment
Many people experience workplace harassment and for some it can last for years. There is no reason to blame yourself for not having reported it earlier.
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One of the elements in the definition of harassment is that it violates psychological or physical integrity. Among other things, workplace harassment can lead to anxiety, depression or even adjustment disorders.
Health can be affected up to a point where it is no longer possible to work and it becomes necessary to consult a doctor. This situation can then cause distress for the employee about the loss of income.
⇒ For more information about the consequences of workplace harassment
What can I do?
If you are unable to work due to workplace harassment, you can consult a doctor, make a claim to the Commission des normes, de l’équité et de la santé et de la sécurité au travail (CNESST) to the Health and Safety at Work Department and/or apply for employment insurance sickness benefits at Service Canada.
Consult a doctor
It is essential that evidence is provided for stopping work or making a claim through a medical certificate. You can speak to a doctor about your situation.
Make a claim to the CNESST, health and safety at work department
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Deadline for submitting a claim
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The deadline is six (6) months following knowledge of the employment injury.
Admissibility
To be eligible for benefits, a medical certificate must be submitted stating that workplace harassment is the cause of the employment injury which justifies the stopping of work.
Compensation
A worker may receive an income replacement benefit (IRB) equivalent to 90% of the salary for the period of the worker’s incapacity. A worker may also try to obtain a reimbursement to cover medical expenses incurred due to the employment injury.
Make an application for employment insurance sickness benefits
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Deadline for applying
The claim must be made as early as possible after stopping work.
Admissibility
The employee must have stopped work due to illness. They must also have worked a sufficient number of insurable hours over a certain period.
Benefits
The employment insurance sickness benefit represents 55% of the weekly insurable remuneration for a maximum of 15 weeks.
Case law
" Law established by judicial decisions in cases. " (Merriam-Webster)
Here are some examples related to cases of workplace harassment:
Complaint processing policy
The case law teaches us that in addition to adopting these policies, the employer must also follow them.
Employer responsibility
The case law teaches us that the employer is responsible for discriminatory actions taken without authorization by one of its employees as part of their job, pursuant to the Canadian Human Rights Act.
(Robichaud vs. Canada (Treasury Board), [1987] 2 L.R.C. 844)
Duty of union representation
The case law teaches us that a union must take the grievance seriously and investigate the case. It cannot treat the case “in a superficial or inattentive manner”
Complaint about constructive dismissal
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The case law teaches us that a substantial and unilateral change to an employee’s tasks constitutes “constructive dismissal”.
Self-employed worker
A self-employed worker is not subject to the provisions of the Labor Standards Act.
Boudreau c. Distribution financière Sun Life (Canada) inc. / Clarica (2020) QCTAT 4529