Laws and employer responsibilities
Policy for preventing harassment and processing complaints
The provisions of the articles in the Act Respecting Labour Standards are deemed to be an integral part of every collective agreement.
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The employer has the duty to adopt and make available to employees a policy for preventing harassment and processing complaints including, among others, a component about behaviours in the form of verbal comments, actions or gestures of a sexual nature.
What is a good policy?
Policy objectives
Confirm commitment to prevent and put a stop to any situation of psychological and sexual harassment and discrimination within the company.
Scope of the policy
Specify the people who the policy applies to.
Specify the locations and the circumstances to which the policy applies.
Present the definitions
Define the main concepts of workplace psychological harassment as described in Article 81.18 of the Act Respecting Labour Standards and include therein a component covering the verbal comments, actions or gestures of a sexual nature.
Policy statements
State the company’s directives and the employer’s commitments.
Implementation mechanisms
Specify the process to be followed in order to try to resolve situations of harassment, to report a situation of harassment and to lodge a complaint.
Principles of intervention
Explain the actions which the employer will take to put a stop to the situation of harassment and present the support measures for persons involved in a situation of harassment.
Roles and responsibilities of the different parties
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Specify what is expected of personnel to prevent harassment and to implement the policy.
Obligation to provide a workplace without harassment
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Prevent harassment
The employer must take reasonable means to fulfil their obligation, without guaranteeing the result.
What is good prevention?
Good prevention is part of the company’s own values. It designates the set of measures to be taken in order to detect conflicts as early as possible, to raise employee awareness and to lead concrete actions to limit and avoid violence at work.
Stop harassment
As soon as a situation of harassment is reported to the employer, the latter has an obligation to put a stop to it by taking appropriate measures and making the sanctions required. This involves the existence and implementation of a recognized mechanism which is effective and tailored to the environment of each company.
This is the employer’s responsibility and not that of the alleged perpetrator of the psychological harassment.
Roles and responsibilities of persons in a position of authority
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Raising employee awareness
Raise employee awareness with regard to the responsibility of all staff members to maintain a workplace free from harassment.
Organizations must take different routes to ensure continued prevention and make their policy a day-to-day reality.
Detecting risk factors
Report on the risk factors in collaboration with staff members in order to be aware of the behaviours and circumstances which could lead to harassment. This should be done periodically and during major changes within the company. This should also be done after the outcome of a situation of harassment.
Choosing preventative measures to take
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Assess the level of risk to determine the schedule for implementing measures. The higher the risk level, the quicker the measures must be taken.
Some measures to prevent situations of risk leading to harassment:
• Open communication between the employer and employees, and between employees. • Equal distribution of work and promotion of collaboration. • Alignment between the skills and capacities of the employee and the requirements of the role. • Leadership in managing conflicts at an early and appropriate stage. • Training to gain the knowledge and skills required to perform the job.
Reference: CNESST (click here)
Intervening informally
Intervene as soon as a possible case of harassment at work is reported and determine how to intervene based on the nature of the conflict and how it developed.
Choosing intervention measures
Decide on the measures to be taken following an intervention or recommend such measures.
When a situation appears to be harassment, the two most frequent types of formal intervention are mediation and investigation.
Mediation
Mediation is voluntary.
A mediation service can be called on at all stages of the complaint process.
Role of the mediator
The mediator is a neutral person who does not take sides either for the employer or for the employee.
⇒ For more information about the role of a mediator
• Explains to the parties the rules surrounding mediation. • Informs the parties of their rights and obligations pursuant to the law. • Provides support throughout the whole process, but never replaces them. • Creates a climate conducive to dialogue. • Helps the parties to express the facts connected to the conflict. • Helps to find avenues for resolution. • Helps the parties to clearly evaluate the situation and the proposed solutions. • Ensures the parties are satisfied with the proposed agreement. • In order to be completely objective, the mediator cannot have already acted in the case under other titles. • They must also act completely confidentially. • They cannot be forced to disclose the information confided in them during their mandate.
Investigation in the company
If the circumstances prevent mediation or if the mediation fails, we can then proceed to an investigation.
Case law
"Law established by judicial decisions in cases." (Merriam-Webster)
Here are some examples related to cases of workplace harassment:
Obligation to stop harassment
The complainant notified their employer on several occasions of the harassment which s/he suffered. The latter took measures against the colleague carrying out the harassment by moving them to another workplace. However, the employer did not want to lose said efficient employee, so they brought them back to the establishment and ended the complainant’s employment. By acting in this way, they breached their obligations imposed upon them by Article 81.19 A.r.l.s.
(Cox vs. Entreprise Robert Thibert inc., D.T.E. 2011T-506 (C.R.T.))
Even if the tribunal concluded that the complainant was the victim of psychological harassment, the complaint would still be rejected because the employer did not contravene the obligations binding them (to put a stop to the harassment). The employer held a meeting with one of the supervisors accused of psychological harassment, invited the two parties to mediation and then proceeded with opening an internal investigation which was proven to be negative.
Prevent harassment
In a workplace where the employees have a cold weapon as a tool of work, an employer must take all preventive measures possible. Far from undertaking such an investigation, the respondent even failed to record “the accident” in the register required by law. In this case, it involves a failure to fulfil the obligation to prevent harassment. “
Right to manage
The notion of harassment should not be extended to all situations where the employer intervenes in a legitimate way, in accordance with their right to manage, at the point where said intervention aims to ensure the smooth running of the office and to lead the employee to act correctly.
Workplace without harassment
The notion of “workplace” includes an evening meal organized by the company in order to reward its employees for the work accomplished. The acts of harassment made by the victim’s manager, during this evening meal, are committed in the performance of their duties. The fact that the activity takes place outside of normal work hours is not relevant.
(Commission for human rights and the rights of young people) vs.Caisse populaire Desjardins d’Amqui, [2004] R.J.Q. 355 (application for leave to appeal rejected, C.A., 2004-01-23, 200-09-004700-040))