Psychological and sexual harassment can have serious consequences on the victims and those around them, but also on businesses. Therefore, in Quebec, employers have obligations to respect to fight against this scourge in their workplace.
As an employer, are you aware of your obligations?
First, it is important to clearly define what harassment is. For harassment to occur, the conduct must:
• be vexatious and repeated or vexatious and severe.
• be hostile (aggressive, threatening) or unwanted.
• be offensive to the dignity or physical or psychological integrity of the employee.
• create a harmful work environment.
The exercise of your management rights can sometimes be confused with psychological harassment. To avoid this confusion, it is important to remember that you have the right to manage your employees, to impose disciplinary measures and to make decisions to ensure the profitability of your business and its proper functioning. The exercise of management rights must be reasonable and necessary so that it does not constitute harassment.
Moreover, psychological and sexual harassment can occur at all hierarchical levels and can also come from customers or suppliers. Anyone can be a victim of harassment, even you as a business owner.
As an employer, you have an obligation to provide a harassment-free workplace. To fulfill this obligation, you must:
• Ensure that you use all reasonable means to prevent harassment.
• stop harassment when it is brought to your attention.
In terms of prevention, you are required to put in place a comprehensive policy for the prevention of psychological and sexual harassment in your workplace. This policy must include a component concerning conduct that manifests itself through words, acts or gestures of a sexual nature, as well as a process for handling complaints. You will also need to appoint a person to be responsible for its implementation.
IMPORTANT: if you do not have this policy, you might receive a hefty fine.
When a situation of harassment is brought to your attention, either through a report or an internal complaint, you must act immediately and take the situation seriously. Here are the steps to follow:
1. Receipt of the complaint or report
Whether it is a report or a complaint, the alleged victim (or the person who made the report) must provide details. This includes who the potential harasser is, what conduct is being reported, the timeline of events and who the witnesses are. If this information is not provided to you, you will need to ask questions to get more details about her version of events.
2. Assessing the Eligibility of the Complaint
Once the complaint or report has been received, you will need to analyze all the facts to determine if the criteria for harassment are present. This analysis will determine whether further action is necessary but will not actually confirm the presence of harassment.
If, after analyzing the facts, you determine that no harassment is present, you are not required to go further. We advise you to write a report to explain your approach and your reasoning. Keep this report carefully. If the complaint is admissible, you will have to appoint a person responsible for the investigation. You are not required to appoint an external person, but it is strongly recommended that you do so.
Please note that even if a complaint does not constitute harassment, it is appropriate to do a small investigation to determine if there is an underlying problem.
3. Notification of those involved
If the complaint is admissible, it is time to notify the persons involved. You should inform them of the facts that have been reported to you and advise them that an interview will follow. Give them a reasonable amount of time to prepare. At this stage, you will probably need to take some steps to limit the damage during the investigation. For example, it may be essential to separate the individuals involved and change their shifts temporarily.
4. Clarification interviews and documentation of facts
Once everyone involved has had time to prepare, you will need to meet with each person individually to get their side of the story. A written report should be made for each person to ensure that their side of the story has been understood.
5. Analysis of the information and submission of conclusions
It is at this stage that the person in charge of the investigation must analyze all the facts reported. After analyzing the information, the allegations can be proven or disproved. This step must be done with rigor and that is why it is preferable to call upon professionals to ensure expertise and neutrality.
If you have hired an external person for the investigation, he or she should provide you with a written report of the investigation with recommendations. As the employer, it is up to you to make decisions based on the findings of the investigation. If you conducted the investigation, you would also need to provide a written report.
If harassment has occurred, you should take all necessary and reasonable steps to stop the harassment and ensure that it does not happen again. Also, make sure that you have fulfilled all your obligations and make corrections if necessary.
If there was no harassment, but there are some things to consider, you will also need to take some steps to resolve the problem.
Even if you have an internal policy that provides for a complaint process, an employee who feels he or she has been the victim of psychological or sexual harassment can file a complaint directly with the CNESST. If this is the case, the CNESST will offer a period of mediation which may be accepted or refused. The CNESST will also investigate to analyze the admissibility of the complaint. If the complaint is deemed admissible, it will be heard by the Administrative Labour Tribunal.
At any time during the process, the employer and employee can reach an agreement and resolve the problem. The intervention of the CNESST will end.
The consequences of psychological and sexual harassment in the business can be numerous. First, this type of situation can undermine the work atmosphere, cause friction between members of the organization, increase staff turnover, reduce motivation, and increase absenteeism. If the harassment occurred with customers or suppliers, it is obvious that the consequences could be serious for the business's survival. Finally, if a complaint is filed with the CNESST and the court finds that you have not fulfilled your obligations, you could be required to compensate the person who initiated the complaint.
If you have any questions about your obligations or if you need our sample policy, contact our business advisors at 1-833-568-2342.
Is it mandatory to have a policy on psychological and sexual harassment at work?
Yes, as of January 1, 2019, all businesses, regardless of size, must have a policy to prevent psychological and sexual harassment in the workplace and a mechanism for handling complaints. A business that fails to comply with this requirement is subject to a fine of between $600 and $1,200. For repeat offences, the amount increases from $1,200 to $6,000.
Who can I appoint to enforce the policy?
Ideally, the human resources manager would be the best person. However, since some businesses do not have the capacity to have a human resources department, it is possible to appoint you as the person responsible.
Do I have to give a copy of the policy to my employees?
We recommend that you take a moment to present the policy to your employees and then give a copy to each one. To save paper, the policy can be sent by email or posted where everyone can access it at any time.
Do employees have to sign the policy?
Yes, signing ensures that everyone has read the policy and agrees to abide by it.
What is the deadline for filing a formal complaint with the CNESST?
An employee has two years following the last manifestation of harassment to file a complaint.
Do I have to hire an outside person to conduct an investigation?
No. It is possible to assign an internal person or yourself, only if there is no conflict of interest. Otherwise, it is preferable to appoint a qualified external person.