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How Bill C-65 Will Affect Your Harassment Investigations in 2021

Confidentiality, good documentation and strong investigative skills are a must

Posted by Ann Snook on November 24th, 2020

Drafted in 2018, Bill C-65 was written with the goal of protecting Canadians from harassment and violence in the workplace. Regulations require federal and parliamentary workplaces to provide harassment prevention training, write formal anti-harassment policies and other steps to keep employees safe at work.

One of the biggest changes workplaces face, though, is the resolution and investigation process. Here’s what you need to know before the law takes effect on January 1, 2021.

 

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Resolve Complaints One of Three Ways

 

Within seven days of receiving a complaint or tip, employers must notify both the principal party (the victim) and the responding party (the accused), including information on each step of the resolution process and their right to be represented.

Then, up to 45 days after giving the parties notice, the complaint must be resolved in one of three ways.

In a negotiated resolution, the employer and the principal party agree that the incident does not fall under the Bill’s definition of harassment and violence, which is

any action, conduct or comment, including of a sexual 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.”

Alternately, the principal and responding parties may try to resolve the occurrence through a conciliation, and must agree on a person to facilitate it.

Finally, the principal party can request a resolution by investigation. If the occurrence is resolved by one of the other two means before the final investigation report is submitted, the investigation must stop. Investigators must provide each party with monthly status updates on the resolution process.

Incidents must be resolved by investigation no later than one year after giving parties notice or, if the victim missed 90 consecutive days of work, six months after their return to work, whichever is later.

 

Don’t Choose Just Any Investigator

 

Under Bill C-65, harassment investigators must be experienced and highly-trained. This ensures a safe, fair and thorough investigation.

Investigators are required to:

  • be trained in investigative techniques
  • have knowledge, training and experience related to investigating workplace harassment and violence
  • have knowledge of the Canadian Labour Code, Canadian Human Rights Act and other legislation related to harassment and violence in the workplace

 

Both parties must agree on an investigator before the investigation begins.

“If the employer and the applicable partner (the policy committee, workplace committee or health and safety representative – depending on the number of employees) have jointly developed or identified a list of persons who may act as an investigator, the employer or designated recipient (as defined below) must select a person from the list,” explains William Hlibchuk, Partner in the Employment and Labour Law Group at Norton Rose Fulbright Canada in Montreal.

“Where there is no such list, the investigator will be the person that it is agreed to by the employer, the principal party (e.g. person victim of the harassment / violence occurrence,) and the responding party (person who is alleged to have been responsible for the occurrence).”

Either party can propose an investigator, and must provide the following information:

  • The name of the investigator
  • Their job title and immediate supervisor (if they work for the employer)
  • A description of their knowledge, training and experience to show how they meet the above requirements, including how long they’ve been conducting workplace investigations
  • A description of their experience relevant to the nature of the occurrence

 

Finally, says Hlibchuk, “in case the parties cannot agree, the employer (or designated recipient) must choose an investigator from among those identified by the Canadian Centre for Occupational Health and Safety.”

 

RELATED: Sexual Harassment Training: 9 Steps to a Safer Workplace

 

Keep Party Information Confidential

 

Workplace harassment and violence investigations should be handled with care. Under Bill C-65, employers will be required to maintain the confidentiality of not only the primary and responding parties, but witnesses, too.

This regulation is especially important because your investigations might not involve just current employees. The Bill requires employers to investigate harassment against former employees, as long as the employee reported the incident within three months of vacating their position.

Bill C-65 also protects employees against violence and harassment from third parties, such as clients and customers. Handling sensitive information for external parties means you’ll need to take extra measures to maintain confidentiality and privacy during investigations.

 

RELATED: Workplace Violence Investigations: The Ultimate Guide

 

Create and Distribute Investigation Reports

 

At the end of an investigation, the investigator must provide a final investigation report to the employer, both parties and the workplace committee.

This report should contain:

  • A general description of the occurrence
  • The investigator’s conclusions (factors that contributed to the incident)
  • The investigator’s recommendations for the employer to reduce or eliminate risk of similar incidents happening in the future

 

To protect the involved parties, the report can’t reveal their identities. Investigators should redact not only the parties’ names from the report, but also other identifying information such as position, department and contact information.

 

Strong documentation of a harassment compliant protects the victim and their employer. Download our free sexual harassment complaint form template to ensure you collect all relevant information and start your investigation off right. 

 

Record and Report Incidents

 

Good documentation has always been essential for workplace investigations, but under Bill C-65, it’s the law.

Each March, employers must submit an annual report to the Minister of Labour outlining the number and nature of harassment and violence occurrences from the previous year.

Include the dates and locations of the incidents and categorize them as sexual or non-sexual harassment, also noting if they involved discrimination. In addition, your report must include how each occurrence was resolved and the resolution time.

If an incident of workplace harassment or violence leads to an employee death, you’ll need to submit a special fatality report to the Minister of Labour. This report must include a description of the occurrence, as well as when and where it happened. Employers only have 24 hours to submit this report after learning of the employee’s death, so efficient, organized documentation is key.

 

What if I Work in the Private Sector?

 

Workplaces that aren’t federally regulated don’t legally need to follow the new requirements set out by Bill C-65. However, making these changes would have a positive effect on any organization.

Having a knowledgeable, experienced investigator means your investigations will be more fair and thought-out. Requiring a thorough investigation report at the end of the process ensures everyone is on the same page. Maintaining confidentiality throughout the investigation protects the parties and builds their trust.

 

Bill C-65’s “policies will cause a positive change in many federal workplace, and will help federal employers to enforce a safer environment for all employees,” says Blake Hardwick, Marketing Manager at Greenberg & Stein, PC. By clarifying how to properly investigate harassment and support victims in federal workplaces, the Bill empowers and protects both employees and employers.


Ann Snook
Ann Snook

Marketing Writer

Ann is a marketing writer at i-Sight Software. She writes about issues related to investigations of fraud, employee misconduct, corporate security, Title IX, ethics & compliance and more.

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