Many employers bury their heads in the proverbial sand and hope these legislative changes will go away
By Stuart Rudner
In September of last year, Bill 132 came into force in Ontario. The bill, formally known as the Sexual Violence And Harassment Action Plan Act, follows substantial legislative changes pursuant to Bill 168, which took effect almost seven years ago.
Both pieces of legislation are intended to bolster protection for employees with regard to harassment, sexual harassment, and bullying. Like Bill 168, Bill 132 includes proactive requirements. In other words, it not only creates potential liability for specific incidents, but also requires that employers take positive actions. In particular, employers must amend harassment policies to specify:
- how and to whom harassment is to be reported, and provide for reporting to someone other than the employer if the harasser is the employer or supervisor of the complainant
- how allegations will be investigated and dealt with
- how confidential information will be treated (and, particularly, provide that information will not be disclosed unless it is necessary to do so for purposes of the investigation or discipline
- how the complainant and accused will be advised of the outcome of the investigation and any corrective action to be taken.
Back when Bill 168 came into existence, we warned our employer clients of the perils of a failure to comply. As we saw, the Ministry of Labour allowed a brief grace period, but quickly bolstered its team of Inspectors and began engaging in a campaign of enforcement.
When incidents have arisen and organizations have been found to have been in breach of their Bill 168 obligations, significant penalties have been imposed. For example:
- Kinark Child and Family Services was fined $125,000 after pleading guilty to failing to provide information, instruction and supervision to protect a worker from workplace violence or the risk of violence from a resident.
- The Centre for Addiction and Mental Health (CAMH) was fined $80,000 after pleading guilty to failing to develop, establish and put into effect measures and procedures including safe work practices to protect a vulnerable sector of their work force.
In both of these cases, employees were attacked by “clients” of the organization. And in both cases, the organization had not complied with its obligations pursuant to Bill 132. That is why they pled guilty.
It should be kept in mind that the true costs to the organization were far greater than the extensive fines. They also incurred substantial legal fees, embarrassing publicity, and the costs of remedying the damage created by the incidents in question.
There is no reason to believe that failing to abide by the obligations of Bill 132 will be treated any differently. The ministry will begin its enforcements mechanisms and, in the event of incidents, will immediately ask for proof of compliance. Where that is lacking, the organization will be exposed to additional liability. To avoid this, employers should take immediate steps to comply with Bill 132 (and Bill 168 if they have not already done so). Policies, programs and procedures must be updated.
Many employers choose to bury their heads in the proverbial sand and hope these legislative changes will go away. While they may be frustrated by the seemingly never-ending obligations, they cannot opt-out without exposing themselves to liability.