Lawyers explain employer obligations around policies, 'trauma-informed' approach to investigations
Wednesday, February 28 is Pink Shirt Day in Canada, an annual event meant to raise awareness about bullying in schools, workplaces, at home and online.
Tales of workplace bullying are often in the news, exposing toxic work environments, leaders or colleagues, and workplace harassment has been shown to be on the rise.
But there are still gaps in employer compliance, Megan Kheong, employment lawyer with MLT Aikins in Edmonton told HR Reporter.
Many employers don’t comply with provincial occupational health and safety laws that require them to have policies around harassment and violence prevention, she explained.
“It’s mandatory in most jurisdictions to have one; it surprises me, actually, notwithstanding the fact this legislation has been out for a few years in most provinces, how few employers have a policy that complies with the regulatory requirements under occupational health and safety or WorkSafe legislation,” said Kheong.
Complying with legislation requiring workplace bullying policies
In a 2020 report conducted by the Canadian Labour Congress (CLC), the University of Western Ontario and the University of Toronto, it was revealed that workplace harassment and violence is an “ongoing and widespread issue” in Canada.
Nearly 7 in 10 workers reported experiencing some form of harassment or violence at work, and 70% of those workers reported missing work because of the negative impact it had on their life.
Having sound workplace harassment and violence policies in place is a mandatory requirement in all provinces, although there are variations as to what is considered “bullying”. But even if bullying isn’t explicitly said into occupational safety acts, it is included with harassment and violence, she said.
“Once employers have a good harassment and violence prevention policy, that paves the way for how to address a complaint of bullying and harassment, and also to prevent harassment and bullying from occurring in the workplace to begin with,” said Kheong.
Workplace harassment and violence prevention policies
Policies should clearly lay out the expectations employers have of their employees around workplace harassment and violence. The policy should also explain the steps the employer will take in addressing complaints of bullying, including how investigations will be carried out, Kheong said.
Consequences should also be included in the policy, not only for perpetrators, but for those who don’t report bullying they’ve witnessed in the workplace.
“All parties have an obligation to either refrain from harassment and violence in the workplace, or to report it in the event that they witnessed it or they're subjected to it, she said. “It's not just the employer that has an obligation, it's also workers and supervisors.”
Having a policy that sets up an independent complaint process is also important, Kheong said, to account for supervisors or managers who are themselves the perpetrators, and to prevent retaliation against those who file complaints.
LGBTQ+ workers, racialized workers and workers with disabilities more vulnerable
The CLC survey, which was conducted to fill “data gaps” around workplace bullying in Canada, revealed that Canadian employees do not experience harassment the same way.
Indigenous, racialized, LGBTQ+ and disabled workers experience workplace bullying and violence at significantly higher rates, with gender-diverse and Indigenous workers experiencing the most of both sexualized and non-sexualized harassment and violence.
For this reason, taking “trauma-informed” approaches to workplace investigations is important, not only when underrepresented groups are involved, but across the board, says Grace McDonell, employment and human rights lawyer with Fasken in Toronto.
“We don't know what trauma our employees or colleagues have suffered, it might not be appropriate to ask about trauma, it might be trauma that occurred outside of the workplace,” she said.
“It's not a standard in the workplace to expect that workers will take off their trauma and leave it at the door. It's expected that this is something that they carry with them, whether or not it has anything to do with the workplace, or any workplace incidents.”
Trauma-informed investigations for workplace bullying
Trauma experienced as a direct result of harassment, or from factors outside the workplace, of events that happened in the distant past can affect how people respond to high-stress situations, such as being interviewed by HR about being bullied, McDonell said.
Trauma can also affect memory, meaning the person may misremember facts surrounding an incident, or remember things later. It can also make them act angry or hostile – all factors that might throw a person’s credibility into question, explained McDonell.
“In the employment law context, trauma-informed investigations are essentially connecting the dots,” she said.
Trauma-informed investigations involve giving the interviewee a sense of control by allowing them to choose the time and forum for the interview, and being transparent about the process by sharing questions that will be asked, resources and timelines. It’s also important to demonstrate empathy, McDonell said.
“Investigations can feel very daunting. Often minority groups feel a sense of not feeling understood, not feeling heard, not knowing what to expect.
“It's really about understanding that there is likely some trauma attached to this individual, to this group of people, and specifically taking a step back and thinking, ‘How can I taper these questions? How can I give this person space to explain what has happened to them, or what they've witnessed? Often there can be a level of scepticism of whether or not that person will feel understood, so it's really just about creating the space for that to occur.”
