'It really just shows that the country is trying to prioritize this'
Canadian employers have a new impetus to clamp down on workplace harassment and violence due to the federal government signing an international treaty.
The International Labour Organization (ILO) Convention 190, the Violence and Harassment Convention, 2019 (C190) was ratified in Geneva on Jan. 30, and for one lawyer, this should send a strong message to workplaces.
“We already have at the federal level, and at the provincial level, various legislation in place around workplace violence and harassment, so by signing on to the ILO Convention, it just really shows that the country is really trying to prioritize this,” says Busayo Faderin, employment lawyer at Koskie Minsky in Etobicoke, Ont.
“That’s really good with respect to establishing that messaging about the importance of this — so, as a general reaction, it’s a good thing.”
One of the new areas that the treaty references hasn’t been considered much in the past, according to another lawyer, and this will help legislators in drafting new laws in future.
“As we’ve seen in some of the legislation across Canada regarding harassment, a lot of it does include the physical and the psychological and the sexual, but there’s not a lot that recognized the economic harm aspect of it,” says Stephanie Nicholson, associate at Filion Wakely Thorup Angeletti in Toronto.
For the purpose of the convention, the term “violence and harassment” in the world of work refers to a range of unacceptable behaviours and practices “that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm,” says the ILO.
More areas of note
As well, the ILO standard expands the definition of when and where an employee might experience harassment or violence; for example, while commuting to or from the workplace.
“That’s really quite an interesting piece as lots of people return from remote work and there have been concerns in Ontario, which has been surprising to me, about public transportation. I hear people talking about their concerns on the subway, even during regular hours of operation and so you can only understand the challenges and difficulties and the harassment experienced later in the evening,” says Nicholson.
“That’s a very notable one and important for people to recognize moving forward.”
A transit workers union president recently called for a national task force to look into recent violence on the TTC.
For employers, the signing should encourage a re-evaluation of current policies and procedures that are in place, according to Faderin.
“This essentially is another great reminder: ‘Do we have training in place if that’s a requirement based on the size of the organization?’ You definitely need to have a written policy in place, and have that training for every employee and so you want to use that as a check-in: ‘Do we have this? How often are we doing it?’”
“As a best practice, if you’re doing it yearly for instance, it makes it a lot easier to make sure you’re on top of it and if you’re not, then you need to at least keep some records as to ‘Have all employees been checked off? When was the last one done?’”
In order to ensure compliance with various statutes, a training regime should be established and potentially enhanced if there are blind spots, says Nicholson.
“I don’t think that employers are as aware of domestic violence and how that might impact their employees so I think that’s a particularly important one to be cognizant of. It’s a real opportunity that they should bring in legal counsel to advise them on what kind of accommodations would be appropriate for employees either experiencing domestic violence at home? That can become an issue when the violent partner shows up in the workplace but a lot of the time, that’s not how it plays out.”
Often, the impact on the workplace is not so obvious as that. “You might not know how it’s impacting your employee if it doesn’t come to quite an ugly head by being present in an obvious way in the workplace,” she says.
The federal government committed $3.5 million to study how workplaces can best address violence and harassment in workplaces.
The ILO convention also encourages stronger enforcement and monitoring provisions, which is something that employers need to heed, says Faderin.
“There could be potentially stronger amendments made in the future around this area where there might be attached consequences for non-compliance, that could be expensive from a penalty standpoint, and not just your typical way — through the legal mechanisms of lawsuits, and human rights, etc. that are already established.”
Risks are real
For employers who fail to take seriously workplace violence and harassment, the risks are “significant,” according to Nicholson.
“One would certainly be if the employee filed an action against them or brings a human rights complaint, they can face significant financial liability; they can be held vicariously liable, where you don’t train employees on courses of action, when you don’t investigate and when you don’t discipline as necessary.”
Responding promptly to any kind of complaint is also key to remember, says Faderin.
“When it does happen, how did the employer respond? And did they take the appropriate steps to managing the issue in the aftermath?”
Once an investigation has been accomplished, it’s also prudent to update the affected employees on the outcome, says Nicholson.
“Employers sometimes forget that the person who brought the complaint, they might not need to know the full details of the investigation and whatnot but they should be made aware of ‘We’ve conducted the investigation, the employee has been disciplined’ or ‘We’ve found that the complaints weren’t substantiated.’ In any event, the complainant should be advised of the outcome of the investigation.”
For HR professionals who want to ensure compliance, the time is right to do so, says Faderin.
“It’s never too late to get started. If you don’t have things already established, now’s the time. At any point, you can start making sure that the organization is complying with the legislation so it’s better to start now, even if it hasn’t been in place before so that you get ahead of it before there’s a big issue that you have to deal with.
“It could potentially be a bigger problem than it would have been if you just started the process of getting the organization up to compliance.”