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Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) 2009, came into force effectively extending the reach of the Act beyond traditional workplace safety to include protection against violence and harassment in the workplace. Now, every provincially regulated Ontario employer is required to take proactive steps to prevent and address workplace violence including the development of a workplace violence and harassment policy and implementation program.
In March 2016, the Ontario Government passed into law, Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016. As a result, employers now have a greater statutory obligation to address workplace harassment and sexual harassment. Bill 132 requires the implementation of more comprehensive policies and procedures and clearly articulates the employer’s responsibility to investigate and inform.
Employers must proactively assess the risks of workplace violence, harassment and sexual harassment that may arise from the nature of the workplace, the type of work or the conditions of work. Measures and procedures to control these risks must be included in workplace violence, harassment and sexual harassment programs. Employers must advise the Joint Health and Safety Committee or health and safety representative, if any, or workers, of the results of the assessment, and provide a written copy, if available. Employers are required to prepare policies with respect to workplace violence, harassment and sexual harassment and develop and maintain a program to implement the policies. Employers must provide information and instruction to workers on the contents of these policies and programs.
Workplace violence, harassment and sexual harassment programs must also set out how the employer will investigate and deal with incidents or complaints.
Considerations involved in investigating workplace violence, harassment and sexual harassment complaints;
A seriously flawed or negligent investigation can be significant and costly to employers; can result in the undermining of employees’ confidence and faith in the employer and create a more poisoned work environment than may have existed prior to the investigation.
Workplace investigations relied upon by employers in further civil or human rights proceedings will be subject to intense scrutiny. Even where an employer does not believe in the merits of the complaint or the credibility of the complainant, the failure to conduct a timely, impartial, appropriately thorough and fair investigation can be critically damaging to the employer’s legal position. In numerous cases the court or a tribunal has found for the employee where the employer has failed to take reasonable and appropriate steps to investigate a complaint.
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