As a workplace investigator who is often retained to conduct harassment and violence investigations for federal government departments as well as for federal public and private employers, I have been watching the slow march to completion of changes to the Canada Labour Code(Bill C-65). You can read what I wrote in 2016 about the federal government process here and the process of selecting investigators under the federal regime here.
Prime Minister Justin Trudeau announced the Federal Government’s mandate in 2015 to take action to ensure that federal workplaces are free from harassment and sexual violence. This was during the time that Ontarians saw a massive shift to how provincially-regulated employers responded to workplace harassment with the introduction of Bill 132 (the Sexual Violence and Harassment Action Plan Act)in 2016. This Ontario legislation included a legislated duty to conduct an appropriate investigation into complaints and incidents of harassment.
The Federal Government’s Bill C-65 An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1 receivedroyal assent on October 25, 2018. This legislation came after mass consultation with stakeholders, including a February 2018 Parliamentary Committee which I appeared before.
The much-awaited proposed Regulatory text (entitled Work Place Harassment and Violence Prevention Regulations) came out in April 2019, six months after the legislation, and can be accessed here.
As anybody who has ever worked under legislation knows, the devil is in the Regulations.
Investigator Observations on the Proposed Regulatory Work Place Harassment and Violence Prevention Regulations
Here are my thoughts on three sections of the proposed Regulations from a purely operative, investigator- perspective:
- Selection of Investigator
Subsection 20 (1) of the proposed Regulations requires that the parties must agree on who the investigator will be, and if there is no agreement in 60 days, the Minister or Labour will appoint one. As per subsection 20(2) the investigator cannot be the responding party or report directly to the responding party. The proposed Regulations require that the investigator must also be trained in investigative techniques, have knowledge, training and experience that is relevant to harassment and violence in the work place and knowledge of the relevant legislation.
When proposing the investigators for selection by the other party, the following information needs to be available:
- The investigator’s name;
- if they are an employee of the employer, their job title and the name of the person to whom they directly report;
- a description of their education and training;
- a description of their experience in conducting work place investigations, including the number of years they have been conducting them; and
- a description of any experience that they have which is relevant to the nature of occurrence that is to be investigated.
My thoughts: I like the idea of the a 60-day cap on the amount of time to select an investigator before Ministerial appointment. In my experience, finding and agreeing to a “competent person” under the previous Legislation often took too long given the quest for the perfect, impartial, right-gender, right- background, right-located, right-linguistic profile investigator with no previous connections to the parties.
Of course, the problem still exists that there aren’t a whole lot of investigators doing this type of work, who meet all of the qualifications, with immediate availability, but I am hopeful that the Ministerial appointment process will increase the pool of excellent investigators.
I am sure that proactive employers will look to have an agreed-upon investigators’ list in anticipation of receiving a complaint, similar to expedited arbitrators lists in labour relations. The proposed Regulations anticipates the development of these lists in Subsection 20(4).
There is no doubt that one of the pillars of an effective investigation is timeliness. Therefore curbing time wasted at the beginning of the investigations will result in a more satisfying investigation process for both parties. What I have learned is that both parties want the process started, moving, and of course, resolved, regardless of the findings.
- Information for Investigator
Section 21 of the proposed Regulations requires that the employer (or designated recipient) must provide the investigator with “all information that is relevant to the investigation.”
My thoughts:I was happy to see this requirement, but I think that the information pipeline needs to be managed carefully.
Yes, employers need to provide information to the investigator that is relevant. Certainly, I have had the experience in investigations that there was “more to the story” and nobody seemed to be filling me in; in these situations, I was left to my own devices to find out what I needed to know.
In my opinion, however, it is up to the investigator to determine whether or not a document is relevant and make those requests to the employer. I have had the experience of being flooded with information from the employer, including historical performance reviews, grievance reports, previous investigation reports, personal medical information, etc. And while some of those documents may have been relevant, I don’t think that all of them were. Some of those documents are impossible to “unsee” and may have impact on my report, even if they are not relevant to the issue at hand. I much prefer a “pull” process where I request relevant documentation from the employer. Yes, sometimes performance reviews or medical information is relevant to my investigation, but I would like to be the one to make that decision.
A good investigator will know which documents they need as the story comes to life via the complaint, the parties and interviews.
- Investigator’s Reports
Subsection 22(1) of the proposed Regulations requests that the investigator create two separate reports. Both reports go to the employer and to the parties.
The final report(report 1) contains details of the occurrence, methodology of the investigation, the analysis and finding and the investigator’s recommendations to eliminate or minimize the risk of similar occurrences.
The summary report(report 2) does not disclose directly or indirectly, the identities of the parties; this report contains a general description of the occurrence (as opposed to details), a summary of the analysis and finding and the investigator’s recommendations to eliminate or minimize the risk of similar occurrences. Report 2 also goes to the “partner,” which in most cases would be the union. The Regulations require that the employer and the partner mutually agree on which of the recommendations will be implemented. The matter is deemed completed under Section 24 when all of the agreed-upon recommendations have been implemented (or early resolution or conciliation is successful, or the principal party chooses not to proceed prior to the start of the investigation).
It is important to know that the proposed Regulations (Subsection 22(2)) states that neither of these reports can disclose, directly or indirectly, the identity of a third party or any witness.
My thoughts: I have two primary concerns about this portion of the proposed Regulations, but accept that the devil in these Regulations will not really be known until the scenarios play out.
- Disclosure of Identity of Third Parties and Witnesses
I understand the wish to anonymize third party witnesses in order to motivate parties to come forward and participate. However, I also have concerns that if the third parties do remain truly in the shadows and their evidence result in findings against a respondent, should that respondent not be entitled to know their identity as a matter of procedural fairness? My suspicion is that most witnesses will be known to the parties even if their names are not used in the reports; most of the work place violence and harassment issues that I deal with have been ongoing and well-understood prior to my third-party involvement. However, I do worry how this anonymization will play out for a respondent with a finding against him or her, where they truly remain unaware of the identity of the one witness who tipped the investigator to make the finding on a balance of probabilities (50.1 percent).
- Investigator’s Recommendations in the Report
As most of my clients know, providing recommendations in my reports is not my favourite thing. As a true third-party, I do not know the organization’s precedents for similar behaviour. I also often do not know an individual’s own disciplinary record, unless it has become a relevant piece of the puzzle. This means that I am making recommendations in a vacuum, and in my experience, I will tend water them down in order to avoid going out on a limb that is not aligned with the organization’s past practice. I understand the desire to have the investigator provide some tangible direction for moving forward post-investigation, however, I am not sure that these embedded recommendations will contain the substantive guidance that will satisfy either the parties, the employer and the partners.
I am happy to see the new Canada Labour Code work place harassment and violence provisions spring to life and I know first- hand that they have been a long time coming. No legislation or their regulations can anticipate every operational hurdle. I look forward to seeing the final implementation of the Regulations and providing an update in a few years that my concerns at the outset never came to fruition.
Jennifer White is a lawyer and investigator in Ottawa. She conducts investigations across the country into allegations of harassment, sexual harassment, sexual misconduct, code of conduct violations and other problematic workplace behaviour. She is on the current roster for the federal government in both the violence and harassment categories, and has a specialization in police and sport dispute resolution. [email protected] (613) 791-7448