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Workplace Violence and Harassment - what you need to know!

In January 2019, the Newfoundland and Labrador government announced changes to Occupational Health and Safety legislation specific to violence and harassment in the workplace. These new rules will come into effect on January 1, 2020.

What’s changing?

Currently, worker-on-worker violence is specifically excluded when it comes to violence in the workplace, falling instead under the employer’s general duty to provide a safe workplace. As of January 1, 2020, a business must have processes in place that will allow for an employee to make a complaint of violence that was perpetrated by a colleague, and have that complaint investigated.

Workplace harassment does not currently feature in the legislation, but as of January 1, 2020 employers will need to have a written harassment prevention plan in place, created in conjunction with the OH&S committee/representative/designate.

What’s the difference between violence and harassment?

Violence relates specifically to a physical threat or behaviour.

Harassment relates to inappropriate or offensive attitudes, words or behaviours. 

Workplace Violence

All businesses should do a violence risk assessment

  • Identify the hazard
    • Look at all aspects of the business – nature of the work activities, working conditions, design of work environment
    • Review previous accident/incident reports
    • Inspect the workplace
  • Identify the risk
    • What’s the likelihood an incident will occur?
    • What is the potential injury severity?
  • Find solutions
    • What are you currently doing in the workplace to lower the risk of violence?
    • Is it working?
    • Ideally eliminate the hazard
  • Implement/make recommendations
    • Requires cooperation and participation of everyone
    • Assign roles and responsibilities for incorporating solutions
    • Monitor and evaluate changes for effectiveness

Develop a workplace violence prevention plan (templates are available from your Business Counsellor)

  • Risk assessment tool
  • Prevention Policy statement
  • Incident Report Form
Workplace Harassment

Harassment is the “inappropriate vexatious conduct or comment by a person to a worker that the person knew or ought to have known would cause the worker to be humiliated, offended or intimidated.”

Harassment:

  • May happen once or repeatedly
  • Can be intended or unintended
  • Can be written, verbal, physical, a gesture or display, or any combination of these
  • Includes electronic messages to a person and social media posts

Examples of harassing behaviour:

  • Unwelcome conduct, comments, gestures or contact which causes offense or humiliation
  • Misusing power or authority when there is no real work purpose
  • Deliberately mis-gendering by referring to a person using terms or pronouns that do not align with a person’s affirmed gender
  • Physical or psychological bullying which creates fear or mistrust or which ridicules or devalues the individual
  • Excluding, intimidating, isolating individuals
  • Making inappropriate gestures/comments
  • Making inappropriate sexual advances
  • Discriminating based on gender
  • Cyber-bullying such as posting offensive or intimidating messages through social media or e-mail
  • Deliberately setting the individual up to fail

Reasonable and fair actions taken by an employer or supervisor, in a respectful manner, to manage and direct workers is NOT harassment:

  • Changing work assignments
  • Scheduling, assessing, and evaluating work performance
  • Inspecting workplaces
  • Implementing health and safety measures
  • Taking disciplinary action such as dismissing, suspending, demoting, or reprimanding with just cause. 

Employers, in conjunction with their Occupational Health and Safety Committee/Representative/Designate, must develop, implement, and maintain a Harassment Prevention Plan(HPP).
 

DEVELOPING THE HPP:

The HPP must:

  • Include a definition of harassment and a brief overview of the law
     
  • Include the statement that every worker is entitled to a harassment-free workplace
     
  • Include statements of employer’s commitment
    • Protect workers from retaliation and provide support to workers when workplace harassment occurs
    • Eliminating where possible, or otherwise minimizing the hazard of workplace harassment
       
  • Include statement of supervisor’s obligations
    • Ensure health and safety of workers in addition to applying and complying with the HPP
       
  • Include statement of worker’s obligations
    • Take reasonable care to not engage in bullying or workplace harassment
    • Report observations or experiences of bullying/harassment
    • Comply with the HPP
       
  • Include statement of confidentiality and workers’ rights under various laws
    • Information will not be disclosed unless necessary for the purposes of the investigation
    • HPP is not intended to discourage a worker from exercising their rights under the Human Rights Act 
       

Procedures must be developed for dealing with harassment complaints:

  • Write reporting procedures for making complaints
    • Develop a Workplace Harassment Report Form
      • Identify a specific person within the department or organization who receives complaints
      • Identify an external 3rd party for receiving complaints if alleged harasser is employer or supervisor
      • Outline timelines for reporting conclusion of investigation
  • Write procedures for investigating complaints
    • The purpose of the investigation and how it will be investigated
    • The person who will conduct the investigation
    • The information that will be collected (names, date(s), detail of incident, names of witnesses, notes from interviews/meetings, associated documents or evidence, actions taken as a result of incident or complaint and investigation
    • Should also reference:
      • Confidentiality requirements
      • Involvement of 3rd party if ordered by OHS Officer
      • Timelines for completion
      • If timeline can’t be met, reasons why and projected new date
  • Write procedures for notifying those involved of the results of the investigation and any actions taken
    • When an investigation is finished, a report should be prepared detailing the findings of the investigation. The report must state whether or not complainants’ allegations were confirmed or not. 
    • The report should also include:
      • Name of the person who conducted the investigation, any other person involved/interviewed
      • Date, time, place of alleged harassment
      • Description of alleged harassment
      • Graphics, photographs, evidence, if relevant
      • Findings of the investigation, including facts ad reasons for determining if harassment took place or not
      • Immediate and long-term corrective action to be taken
      • Reasons why no corrective action will be taken where none will be taken

The investigator must meet separately with the complainant and the alleged harasser to explain the conclusions, along with any disciplinary action.

  • Outline potential corrective actions for harassers
    • Education and training (conflict resolution, assertiveness, respectful workplace etc.)
    • Reprimand
    • Termination
  • Outline requirements for documentation and record-keeping
    • Maintain accurate records relating to harassment reports and investigations
    • Keep in a secure location and limit access to person responsible for investigating complaints of harassment
    • 3rd-party providers must also maintain confidentiality and follow documentation and record-keeping processes of the employer

If the investigation does not find evidence to support the complaint, no record of the complaint, investigation, or decisions will go in the complainant’s file, if the complaint was made in good faith.
 

IMPLEMENTING THE HPP:

  • Train everyone in their specific roles and responsibilities
    • Definition and types of harassment
    • Preventing harassment – respectful workplace conflict resolution, etc.
    • Roles and responsibilities in the HPP
    • Reporting harassment
    • Documentation requirements
    • Investigation proves
    • Confidentiality and privacy
  • Communicate the plan
    • Information sessions
    • Staff meetings
    • Emails
    • Posters
  • Enforce corrective actions
    • Ensure they are followed and documented when an incident of harassment has been confirmed
    • Follow up on corrective actions to ensure they are effective and working as intended. 
       

MAINTAINING THE HPP:

  • Review and revise the HPP as necessary, but at least annually
     
  • Determine if procedures are sufficient
     
  • Identify any gaps or shortcomings that need updating
    • Request feedback from managers/workers
    • Be open to worker feedback and comments
    • Review the number of complaints in the previous year, their nature and how they were dealt with (helps identify trends or indications of success or challenges)
    • Conduct exit interviews with personnel leaving the organisation
    • Adjust policy/procedure as needed. 

For help creating your harassment prevention plan, including template documents, please contact your CFIB Business Counsellor.

WorkplaceNL is hosting a webinar about the workplace violence and harassment requirements on November 14, 2019, from 10am – 11.30am. Registration is available through their website