eSignature Legitimacy for Addressing Harassment in Canada

How to eSign a document: eSignature legitimacy for Addressing Harassement in Canada

okay is I'm assuming I'm hoping Jennifer is here so it's my pleasure now to introduce our first speaker backed by popular demand is my pleasure to introduce Jennifer Duff Jennifer is a labor lawyer with shields hunt off Stratton Jennifer practices in all areas of labor and employment law with a focus on representing unions and our members as well as employers are sorry employees in employment law matters Jennifer and Shore State clients understand the legal process and feel comfortable and confident as possible as to navigate through the various stages of litigation she appears in matters before Federal and provincial courts boards tribunals and arbitrators on behalf of public and private sector unions and employees she is fluently bilingual and serves clients in English and French a partner in The Firm Jennifer was called to the bar in the province of Ontario in 2003 after articling which Shields and hunt Jennifer graduated from the national program at the University of Ottawa receiving her common law LLB laude in 2000 and her civil law lll a laude in 2002 and I hope I came close to pronouncing those things right outside our law practice Jennifer spends her time enjoying the busy life of a mother of three active children Jennifer enjoys traveling with her friend or family and experiencing what the world has to offer please help me welcome Jennifer Duff [Applause] thank you I'm thinking I'm going to have to update my my bio there at one point because if it used to be fine to um to say when I graduated now it makes me just feel a little bit old so okay so I am here to speak to you about uh harassment and workplace violence and um let me start with this I'm very very happy to be here today with all of you in person I think the last time I came uh in person was 2019 so it would feel like two and a half years ago it feels like much longer and uh before we get started as a heads up I will you should all know that I'll be going back and forth uh in English and in French and so for anyone who needs them you'll want to have your headphones ready so I'm going to be presenting both in English and French I'll be going back and forth so for those of you who would need them please make sure to uh where your interpretation kids presentation for me is always the slides and Lira assured me that both will work with the same button so let's go there we go I love it already okay so dabar arms for context so to provide you with some context employee employers for quite some time now I think I should have taken off my mask sorry so for quite some time now employers had an obligation to maintain a healthy and safe workplace and to investigate complaints of harassment or violence in the workplace but on January 1 2021 the federal government put in place the new workplace harassment and violence prevention regulations known as the regulations in the workplace so it's very very long so I'm going to be referring it to as I'll be referring to it as the regulations so the regulations brought some amendments to the Canada labor code on the bill c65 so these amendments significantly expanded the obligations of federally regulated employers with respect to preventing harassment and violence in the workplace and outlined it the regulations equally outlined the procedures that must be in place in order to respond to incidents of harassment and violence so basically under the new regime the existing Canada labor code Provisions with respect to sexual harassment and violence were Consolidated and broadened under part two of the code federally regulated employers are therefore required to comply with a number of obligations in order to satisfy their duties under the code which are to investigate to record to report to prevent and to provide as much as possible training with regard to workplace harassment and violence so this equally includes a sexual harassment and sexual violence so in a nutshell employers are required to prevent incidents of harassment and violence secondly to respond effectively to these incidents if and when they do occur and thirdly to support affected employees so the regulations apply to all workplaces that are regulated by the Canada labor code I mentioned this earlier on so what we are referring here to is the various branches agencies and ministries of the federal government as well as federally regulated workplaces which include the First Nations band councils Banks telecommunications companies and obviously air transportation as well as inter-provincial and other Transportation Transportation such as railways I'd equally like to mention here that the new regulations only apply to workplace violence or harassment occurrences that happened on or after January 1st 2021 and occurrences that the employer first became aware of on or after January 1st 2021 even if the incident happened before January 1st 2021 so for every event that the employer only learned about before January 1st 2021 you need to use the processes which were mentioned in the previous regime so the regulations on a workplace health and safety and switching uh the slide over so before we really get started uh into the sort of the nuts and bolts of the process first question what is workplace violence and so part two of the code the can of Labor code defines harassment and violence to include any action conduct or comment including a sexual nature that can reasonably be expected to cause offense humiliation or other physical or psychological injury or illness to the employee including any prescribed action or conduct or comment and so that's uh that's a mouthful I'll just take a sip of water here and so what does that really mean right and so I'm going to show you some examples I'm not going to go through these through all of them and you will get a copy of the these slides with your notes but before you you've got a non-exhaustive list of what may amount to harassment and or violence so aggressive or threatening behavior including verbal threats or abuse physical assault obviously spreading malicious rumors or gossip about an individual or about a group socially excluding or isolating someone so that one's a tough one sometimes when I'm not wearing my lawyer hat I'm wearing an investigator hat and then conducting workplace investigations what we find is that's a very tough one to prove not that it shouldn't be alleged and not that it shouldn't be sort of you know very much looked into but it's sometimes tough to distinguish between two people who just don't get along and don't eat lunch together and don't really speak to one another in the office or in the workplace and you know a targeted attempt to socially isolate somebody away from the rest of the workplace other examples abusing Authority by publicly ridiculing or disciplining a subordinate we see that sometimes in the workplace with some managers or supervisors with uh with very aggressive or very um uh even loud sometimes um personalities abusing Authority by interfering with the subordinates performance or their job so blocking applications for leave or or training or promotion um making abusive or derogatory remarks or jokes about someone's gender or gender identity or gender expression or their sex or sexual orientation so for example making homophobic or transphobic remarks um yes so domestic violence and so this is an interesting aspect of this so it's also called intimate partner violence or domestic abuse or relationship abuse so that's a workplace Hazard uh I mean obviously it could be two people who are in a relationship working together but it could also be coming from outside of the workplace so it's considered to be a workplace Hazard when it occurs in the workplace so it puts the targeted worker at risk and it can pose a threat to co-workers we see this kind of thing sometimes with just one example a relationship ends and you've got somebody who's in the workplace and their their former spouse or their ex will call or will you know purposely they will call it to track you know they'll call fellow employees other people they know uh or they will you know purposely not be available to pick up the child at daycare those kinds of things those things have ramifications obviously inside the workplace for the worker who's experiencing that that domestic violence outside the workplace um using the internet to harass or threaten or maliciously embarrass someone we see that time and time again now people uh you know but behind the anonymity or people are much Bolder when they're typing behind a keyboard than they are in person so we see Facebook harassment campaigns or um Snapchat for younger people those kinds of things and uh obviously other examples would be sexual touching so patting or pinching or caressing or kissing or fondling even if you're wearing the green button these things are not acceptable um sexual invitations or requests in return for the promise of a reward so that's the classic what we what we used to think about sexual harassment sending inappropriate electronic communications so sexually suggestive or sexually explicit emails to people don't do that in the workplace um and I tell my children don't do that ever but but that's a different story um okay so what so we've heard about things that are harassment what's not harassment right and so we're we are asked not to confuse and sometimes it's hard but not to confuse workplace harassment and violence with normal workplace conflict and differences of opinion right and it's been found the cases court cases uh arbitral decisions over over the years it's been found to be appropriate for supervisors to take the following actions as long as they are done respectfully professionally and in good faith so supervisors can directly supervise employees they can set out performance expectations and they can provide construction constructive feedback and about their work performance they can put employees on performance Improvement plans they can take reasonable disciplinary actions and they can assign work you know and direct how and when that work ought to be done or they can request updates or they can approve or deny time off again I think the key word here is the reasonable and in good faith foreign so here we are getting uh really into the nitty-gritty of the regulations and we're looking at what the regulations are required of employers I'm going to look at four different aspects with you the first being to put together policy we must offer uh training we must equally conduct an assessment a risk assessment in the workplace and finally we should be able to resolve complaints or grievances so we'll start with the policy because this is a starting point so employers as well as their Partners the concerned Partners must together make sure that they come up with a pre workplace harassment and violence prevention policy and also to provide this policy to employees so you'll see that I already talked about the partners concerned so the policy uses a very specific terminology so concerned Partners here are simply referring to the representative or the committee uh with regard to our workplace uh safety occupational safety so it depends on the title which is used by the employer but there's always a partner or a committee that is established in order to work on the workplace safety piece so the policy must contain a number of aspects especially including a statement of mission statement from the employer on the prevention prevention and protection against violence and harassment at the workplace the policy must describe the respective roles of the employer as well as employees and the partner involved the policy must outline or summarize the training that will be offered the process for resolving complaints as well as emergency procedures and the way in which the employer intends to protect the private lives of the persons involved more and more we're beginning to experience to see Anonymous reports where you within a reasonable as as much as possible there are no items identifying individuals uh in a specific manner I'll come back to that particular aspect uh down the line the policy must equally describe the different uh resolution processes or um the different uh recourses that are available and also the support or procedures that are available to the employees as well as the names of the persons who are designated to receive and listen to complaints so this is often the designated person to listen to these complaints in our case we have Sean and Colleen who will be listening to any harassment complaints so we'll equally be talking about offering training so what is supposed to be contained in this training this training is supposed to be offered to employees within three months of them beginning our work uh everyone should have received a training uh before uh January 1st 2022 and in this training you must be the training must include aspects of the policy and you must be provided with a description of the of recognizing um rather differentiating workplace related conflict and harassment and violence at the workplace we equally equally need to be provided with information on how to recognize minimize and prevent as well as respond to workplace harassment and violence another obligation for the employer under this regulation is to conduct an assessment of the risks at the workplace so employers as well as their Partners the concerned Partners must assess and identify together the risk factors which could be either internal or external to the workplace and these risks will contribute largely contribute to harassment and violence at the workplace so as part of this assessment we must factor in the culture workplace culture work conditions as well as the organizational structure in the workplace all right we must equally pay attention to uh outside uh external circumstances such as the family situation which could lead to incidences of harassment and violence in the workplace [Music] you also want to be able to take into consideration all the reports and data relating to a workplace related incidents of harassment and violence you're equally looking at physical conditions at the workplace and there are certain workplaces which are more likely to lead to or to encourage so to speak it's a bit strange to say that way but which could lead to you know incidences of violence and harassment and equally to look at the measures in place in order to protect the health and safety psychological health and safety of workers in the workplace after conducting this risk assessment every six months uh each six months this assessment must be conducted and employers as well as their concerned Partners must come up with and Implement a number of preventive measures in order to address these risk factors oh the processes the resolution the resolution a process so finally the regulations put in place a resolution process which is quite detailed and that is what I'm going to be talking to you today about so the regulations provide employers with detailed and comprehensive resolution process and the regulations set out timelines conditions under which the process processes are to be used and the steps to be followed as soon as a notice of currents is served so listen let's get the process started so who are the parties who can initiate a complaint and as I had mentioned earlier the regulations require an employer to designate a person or a division to receive harassment or by or workplace violence complaints and to coordinate the complaint process so this is called the designated recipient and you'll also hear words like principal party and responding party so the individual who has been allegedly targeted or subjected to harassment or violence is called the principal party and the person alleged to have been responsible for the harassment or violence is the responding party so we it's very hard to get used to this terminology we will often refer to those parties as the complainant and the respondent most of you will have heard that terminology and be used to that as well but when we're dealing with code complaints you'll see you'll see this terminology being used and I suspect that this is at least in part because a principal party can make a complaint on their own behalf and in that case they're the complainant but a third party witness can also make a complaint on behalf of a principal party so if a witness brings the complaint forward the witness can remain anonymous but the principal party uh does not remain anonymous so that's an interesting feature I think that's why the the principal party is not necessarily the complainant um and an interesting feature uh to know is that uh under these regulations former employees are also permitted to bring complaints forward but they have three months to do that following the end of their employment foreign the process get started and I can just you guys can read it here but I can summarize uh the start so before we really get going into how how all of this gets going how the process gets started what you need to know and I think we heard it already today a little bit is that ideally these things get started as quickly as possible so so once an incident occurs you want to Signal it you want to raise it as soon as uh possible after the incident has occurred and what this does is it permits an employer to deal with it as quickly as possible now I say this if there's an immediate danger of violence so to life or limb or if there's a situation that is putting the safety of a person in Jeopardy of course what the employee is supposed to do or ideally you have to try to disengage from the situation you get yourself physically away from the situation and then you you know you call 9-1-1 if you need to call 9-1-1 you get medical assistance and then when you're in a safe space that's the point at which uh you you would identify or you'd you'd give the signal that the incident has has taken place so safety first and then um then you go ahead and uh and start that process okay so under the regulation a complaint again different wording the complaint is called a notice of occurrence so the complaint resolution process becomes engaged as soon as a notice of occurrence is provided to the employer or to the designated recipient so there's no requirement of a specific form that needs to be used but many employers will have forms internally they will have developed forms but the complaint itself does have to contain the following so the name of the principal party or the parties if known again obviously if it's your own you're going to know but if it's a witness that's making this report they may not know the name of the individual the name of the responding party or parties again if known the date of the occurrence and then a detailed description of the occurrence we always tell um and I'm sure you all do this as well in your in your own work lives we tell people keep notes keep notes of dates keep notes of times so this stands this continues you we do this to the extent possible keep notes of everything in terms of the detailed description of the incident I normally tell people to you don't have to give a 14-page complaint document at this stage because sometimes it gets handed over to the responding party sometimes it doesn't it goes to the employer but what happens ultimately if this goes to an investigation sometimes it contains a whole bunch of extraneous information and people want to get their stories out and I always tell people the you know stick with the facts for now and the time to get your story out is when you're meeting with an investigator and you will be given the time to start at the very beginning and to go through you still have to name the incidents you don't give so little detail that there's nothing to go on but you don't have to give you know it's it's you don't have to write a novel about it at this stage foreign so I'm going to show you an example I'm sorry for the tiny font but this is an example that is on the federal the government of Canada web page about what a form might look like but you'll see it's those same kinds of informations that are that are requested and so some employers will use this form or use this template to create their own form okay so informing the party so within seven days of receiving the notice of occurrence the employer or the designated recipient must contact the principal party and they will inform them they must inform them first that their notice has been received or if if they were not um the actual complainant that they have been named or identified as the principal party that's in the case where a witness is the one who brought forward the notice of occurrence they need to be told how to access the workplace harassment and violence prevention policy uh they should be told of each step of the resolution process and I think this is the most important part and the part where people are always asking themselves what happens next and they need to be advised that they can have representation during the process obviously in a unionized workplace what we have is uh your your union rep can attend with you in non-unionized workplaces it can be a support person it can be a legal counsel normally the respondent is more likely to be looking for legal legal advice at that stage but in any event um and if the notice of occurrence is provided by a witness who's not Anonymous the employer would also contact the witness during that same seven day window to acknowledge that the complaint was received and then when and it's not the same deadline but when the employer decides or it's at the point where they will first Contact the responding party of the occurrence they have to give them the same information so a different feature about the regulations is that the principal party has the right to end the complaint resolution process at any time by informing the employer or the designated recipient that they choose not to continue with the process that's interesting to me it's a significant difference from most provincial legislation in which the employer can and frankly sometimes must investigate incidents of harassment regardless of whether or not the complainant wants to proceed and so normally what that's based on is the principle that an employer is responsible for ensuring a healthy and safe workplace for its employees so the thinking is that the the employer has to look into the matter as soon as or you know as soon as they become aware of it regardless of whether or not the complainant wants to participate and years ago I was involved in a in an investigation where I mean it was an interesting case where there was a witness who had made the complaint who had brought forward concerns about harassment in the workplace the the alleged the target of the of the alleged harassment um vehemently denied that this had happened she did not feel harassed she did not want to speak to me she did not feel targeted um but in the context of this investigation there were other things that had happened in the workplace and so ultimately you know without getting into too much detail there was a finding of harassment and you know and the the complainant or not the complainant story the uh the in this case would be the Principal party would would have wanted to have nothing to do with it and so uh so this is a huge shift in my view so another aspect of the regulation is this informal resolution option and so we heard a little bit about it today so the principal party and the employer must try to see whether the issue can be resolved informally so normally by way of a negotiated resolution so if there's going to be a negotiated resolution and if it might affect the responding party then the responding party's involvement obviously would be necessary and then moving on from that there's a there's another they call it an informal I call it sort of a semi-formal if you will um resolution process or resolution option is conciliation or mediation so we all know what that is so it's where a third-party conciliator or a mediator works with the parties to help them resolve their dispute so unlike the negotiated resolution which is mandatory the conciliation can only happen obviously can only happen when both parties voluntarily agree to it and they also need to agree on who the conciliator or the mediator will be and you know this is not it's no surprise mediation can't work if both parties don't buy it right we all know we all know that um and what I think is important to note for you when you're when you're advising members or you're advising your locals when allegations are related to sexual harassment or to violence or to sometimes where there's a significant power imbalance it's very important to consider how an offer of conciliation should be made whether it should be made what the format of that conciliation might look like you know if even if somebody was interested in it is this one of those situations where it's better to have people not come together in the room at first you know sometimes we all get together then we split out so you don't always need to see one another because what we need to think about is how it could be triggering or re-traumatizing for the complainant or the principal party foreign and this is what we think about when we think about the workplace investigation process this is sort of the focus of that so if An Occurrence is not resolved by negotiate a resolution or by cancellation or mediation then an investigation under the regulations the investigation of the occurrence must be carried out if the principal party requests it so the employer or the designated recipient must provide the principal and the responding party that an investigation will be carried out so who should do the investigation um the regulation actually restricts who can be assigned as an investigator so it's expected that the employer and the Workplace Health and Safety Committee that the the applicable partner will jointly develop a list of investigators and so when a notice of occurrence is being brought forward the employer normally gets to choose anyone from that list to investigate the occurrence so if there's no joint list which sometimes happens then the employer must either assign an investigator who both parties have agreed on or they can request a roster investigator that's uh and the roster is maintained by the Canadian Center for occupational health and safety so what are the requirements the investigator must be trained and knowledgeable and they must declare themselves to be free of conflict of interest in respect of the investigation and then they're also supposed to provide the parties with uh you know their statement of qualifications so their name their job title a description of their knowledge and training and also a description of any specific experience that they might have that that fits in with the nature of their currents so for example specific experience and intimate partner violence or in sexual harassment or internal Union structures if the investigating if the investigation is happening within a union or racism or trauma-informed investigations those kinds of things foreign here on the investigation report but I thought I should also make a quick note about how the investigation process unfolds so I will say that the investigator is the master of their own process if you will in terms of how they conduct the investigation but when you're advising members or if you're going through this you know a couple things that I tell people is whatever timeline you're thinking although there are specific timelines but whatever people are thinking in their head you might have heard me say this before I always say multiply by six I don't say double it I'm like let's set some realistic realistic expectations people go on holidays people are sick Union Representatives aren't available lawyers aren't available whatever the case may be times it by six that's number one number two is normally not always but normally the investigator will reach out to the complainant or the principal party first they will interview that that person they will sometimes they will summarize the allegations so if the person you know provided that 14-page complaint document and nobody wants to just hand that over to the respondent because it contains a lot of extraneous or non-confidential information um or confidential information but it's not blacked out for example or redacted then sometimes the investigator will do a summary of those allegations and then that gets provided to the respondent and then they conduct the interview and so that's that's really the opportunity for the complainant to tell their story from start to finish uh normally not always but normally after that the investigator will interview Witnesses and so sometimes the complainant identifies Witnesses sometimes the employer just from here or not the employer the investigator just from hearing the names of witnesses decides who may or may not have helpful information and the respondent is normally interviewed last and so sometimes that's extremely frustrating for the respondent who is dying to tell their story they want to get it out and they want to tell it and what I try to tell people or tell respondents when I'm advising respondents is you need to have all the information presented to you because you have the right to respond to all the allegations and the allegations aren't necessarily only coming from the complainant so uh patience is key in that in that sense and also what you want is the investigator to be giving regular updates just so that people aren't lost and aren't kind of wondering two months have gone by and I've heard nothing so when that's all done a report is uh created as provided so the regulation requires that the entire resolution process including the investigation must be completed within a year of the notice of occurrence and so again people don't think of a year is a long time so people don't think about that if somebody's absent from the workplace for over 90 days then that year gets extended further um and just as a general note the timelines in the regulations are something that you're going to want to keep in mind as you're going through the process so while it's more of an issue for employers as Union Representatives what we want to think about we want to think about what those timelines are because we want to hold the employer's feet to the fire and make sure that those timelines are respected so uh for example that in terms of timelines you've got to acknowledge the the receipt of the concerns or the notice of occurrence within seven days you've got to start the investigation within 45 days they have to keep the parties informed of the status of the investigation with monthly updates and you've got to complete the investigation within a year so the kicker is that one year also of fully implementing any recommendations that are made by the uh from the investigators report so that sometimes can feel like a tight deadline depending on the nature of those recommendations I'm not very great at looking at the time oh not bad okay all right so back to the report itself the regulations have very specific requirements about what that report can look like so the investigator has to describe the circumstances in the workplace that contributed to the harassment they have to make recommendations on how to prevent similar occurrences and so investigators have to kind of turn their minds to systemic and workplace culture issues the investigator cannot reveal the identity of the party so that can be extremely challenging um investigators need to be cautious about how they write their report so sometimes the most careful of redactions will still reveal enough information that any of the recipients can kind of piece together who did what to whom and who you know who testified what and who gave evidence against them right and so describing things like titles or relationships or departments that could reveal the identity of the parties um the employer has to provide a copy to both the complainant and the respondent as well as to the applicable party and what you should know about here because what we're finding is happening is that investigators under this regulation are being asked to basically create two reports and so there is one that is the report and what I mean by a what I mean by that is there's one more detailed report and then there's a second summary report and the summary report is quite often what's being given to uh the the principal party and the responding party and then as you know a select group whether it's in HR or whatever the case may be there's only a very limited number of people who see the entire report so what I have included in the materials that will be sent to you are sample redacted copies of an English report and one in French and so you'll kind of get a sense of what what that will look like those are both summary reports they're both you know on the five to ten page kind of range they need to give enough specificity and enough detail that people know what happened in terms of what were the allegations and what was the outcome but they will not have all of the details of the larger report which you know can sometimes be 75 100 pages long and I'll hold my own opinion as to whether or not you know uh complainants or respondents should be entitled to the whole thing um okay recommendations so discussing and implementing the re the investigators recommendations so once the investigation is complete the employer and the Workplace Health and Safety Committee or the representative must jointly agree upon the recommendations that are made and and what will be implemented in the report so once those those recommendations are agreed upon the Imp the employer has to implement everything that has been agreed upon and if they cannot agree about whether or not a particular recommendation should be implemented then the employer has the final say but the employer then has to provide a written explanation of why or explaining its decision not to implement the recommendation the regulation also requires employers to make a report to report once a year to the minister and they have to outline the total number of occurrences so complaints details on the number of occurrences that were related to sexual harassment non-sexual harassment and workplace violence the types of relationships between the principal parties and the responding parties so was it a supervisor a subordinate relationship was it colleagues was it you know whatever the case may be um the the methods of conflict resolution or resolution that were employed so did these things settle at the informal stage at the mediation stage or did they go through to a full investigation and then the average time it took to resolve uh the or to to go through the entire resolution process okay um I'm just trying to figure out how I'll do this with the with the translation I'm gonna I can say it in English it may be a little bit easier to start this way and then by all means I don't want I don't want to take up more time than I'm allowed to uh but but come to see me after and um I'll share I'll share it all again in French if you like um so one of the things that I was asked to speak with you about was to give some practical tips to consider when you're approached by a member or who's either a ledging workplace harassment or violence or who's the respondent in those types of allegations so as the union you want to counsel locals stewards and representatives to avoid taking sides or exposing the local to a conflict of interest situation so in member to member conflicts it's almost always best to assign separate Representatives or to engage outside counsel for one of the members and you know we have run into yeah maybe you have run into I've certainly run into in my uh in my practice places where you know it's a it's a small local or it's a small group and somebody has to recuse themselves but then kind of sits in the background and still uh you know needs to know the information and find out and that's just problematic so separate those things and create an information wall where people are not speaking to one another about people and when I say people I mean representatives are not speaking to each other about the details and the pros and cons of each side unless of course it's in the context of negotiating something um and or engage outside counsel that so that there's a you know there's a real distance between um Representatives so as the representative something else to keep in mind when we're talking about harassment and workplace violence is you want to assess your ability to undertake the role so if you're dealing with allegations of for example uh racism sexism ableism homophobia transphobia consider whether you have the knowledge or the understanding that's required and if you don't have it then then seek input from somebody who does so we don't all have the same shared life experiences so lean on somebody else who who has those experiences um you also want to consider whether there's a power imbalance between the two members or whether the allegations are serious and although every allegations are important to the complainant but the level of seriousness of the allegations may impact your approach to the problem and I go back to the example of in a sexual assault situation this is not likely a place where you want to put two people together at a table to work it out [Music] um think about also not only filing a complaint but whether a grievance is appropriate in the situation so for example um when harassment is based on a prohibited human rights ground you might be thinking of grievance complaints and human rights complaint that all of those things are things to keep in mind and to think about the time limits for doing all of those things which are normally different okay and more specifically with how to help a member that comes to you with allegations of harassment or violence so these are the types of questions that might be helpful to you if you're interviewing someone if somebody is coming to you and talking to you about these things this might help you help them in understanding what happened and putting their complaint together or formulating their own mind how to put the complaint together so what were the dates the times the places of the alleged incidents what kind of harassment was it so was it personal racial sexual or some other type was their physical contact did the member feel unsafe um you know was he was the member denied a promotion was the member subject to discipline was the member subject to a toxic work environment so and are there physical or mental health effects of the alleged harassment so another question to ask is did the member do or say anything to show that the harassing words or actions were not welcome so listen um no it's important to note that a member who has been harassed does not have to object in order to have a valid harassment complaint you're not required to tell the person that their conduct is unwelcome normally the test is conduct that is known or ought to be known to be unwelcome um but nonetheless it's important for you as a representative to know whether or not something was said um and when and that's when you're building your case for harassment or violence who's the alleged harasser so is it a supervisor is it a co-worker is it someone the member deals with as part of his or her job are there Witnesses who are the witnesses you know what did those Witnesses see in here because you'll often get people who want to give character Witnesses or who know about stuff that happened 16 years ago or whatever the case may be and what you need to know is who saw this who saw this happen because that's who likely the investigator needs to speak with first Sometimes context is important but people think it's more important than it is in terms of I'm a really good person and so I wouldn't do this kind of thing you'll actually see that from respondents um coming you know more often from respondents than complainants so are there documents related to the harassment these days what we tend to see are emails so people will come to us with a binder full of you know 200 emails that they have you know been been uh have been in receipt of and they've kept them all but that's helpful for the investigation um you know has it happened more than once is this a single incident or is this a recurring pattern often unless it's a single serious incident most of the time when you're dealing with harassment what you're seeing is a pattern over time so things don't come out of the blue they really do happen sort of slowly but surely and at some point somebody hits their hits the Tipping Point and has the member informed management of the harassment or the the workplace violence and if yes what was done if anything was done so listen uh I think that we've reached the end here I think that you've heard enough from me and I hope that this presentation has given you a sense of what you can expect in the context of the complete process under the Canada labor code and as to how you can help your members the key takeaways are to listen to get their story to not rush to judging the situation not put yourself in a situation of conflict of interest and always think about the time limits so thank you very much questions and I'm sticking around I think you guys are heading to a break no not heading to break I'll stick around and if anyone wants to come up and chat I'm happy to do that thank you so the way we're going to do this we don't have any standing mics because we didn't want people going to one area so if you have a question just raise your hand and uh calling or myself will bring you the microphone thank you hi what happens if you submit a notice of occurrence and you don't actually get the response that you would expect or want from the employer so the so under this new um under this new legislation what they have to do is acknowledge that they've received it uh what you tend to see more actually is just a delay in terms of things getting going but the initial response is really an acknowledgment of receipt right and it's a copy of the policy that's that's applicable to uh the situation and that's that's about it and then what you do is you get that letter that says we're going to turn our minds to this um and we'll get back to you and so what I think is important is for Union representatives in particular to be pushing the employer at that point if nothing is happening within you know a week or two you need to be following up and saying what's happening next I understand that there's an informal resolution process is that where we're at now you know is a negotiated settlement being looked at if not let's move on um and I think I think that's what you have to do you have to be pushing that forward if the employer refuses if nothing gets done then you've got options such as a grievance right of course a grievance for failing to follow the process so whether that's a policy grievance or whether that ultimately becomes a health and safety grievance for the individual and also there are penalties for employers failing to conf to to follow the uh um the regulation so if the employer is not following the regulation you can report that to the ministry and I think that the initial approach is always voluntary uh um compliance and then ultimately if there's continued non-compliance then there can be fines and and the employer's name can be published yeah that's always a good threat any other questions uh yes um two questions if I may the first one is about the investigator it seems that this is a common feature of the process who Bears the cost because presumably investigators if they're skilled to come with a pretty high price tag it's very funny that you see so the ant the short answer is uh normally the employer um and so it's funny because that sometimes that question is sometimes asked to ask of me as an investigator when I'm like when I'm wearing my investigator hat and all I know from my end is I'm retained by an employer um so in like in this case it could be uh as ucte as the employer would retain me um and would pay my bill and uh and now I do know that sometimes there can be internal Arrangements between um employers and their own uh like their own unions that are within the workplace but I've I've not seen it happen I just know that it could happen so whatever happens internally that's one thing but the employer is expected under the regulation to bear the cost of the investigation okay thank you my second question is you refer to the reports and you say there's sort of anonymized yes do they ever find their way into any sort of publicly accessible location so thank you some of your employees are subject to atip legislation right or or the Privacy legislation whatever the the case may be um I always so they're not supposed to um they are supposed to be sort of locked away but um I always tell people when I'm in a workplace that is subject to atip for example that listen what we talk about you might want me to send you that on your personal email you might want me to send you my own investigation notes on a personal email rather than a workplace email and because there's always that risk it's not supposed to come out but if it does come out it's that's the purpose of it being completely anonymized it also even you know even before this regulation I always anonymize my reports I do it more carefully now but I I always anonymize my reports and named you know complainant one respondent one witness a b c d e and the reason for that is I don't want somebody you know it gets locked away in a cabinet and then staff can change and then what I don't want is somebody five years from now pulling open the cabinet and sort of you know reading through the report and knowing something that that a complaint had been made against a fellow co-worker five years before so we we try to avoid it but I I Never Promised con you know ultimate and anonymity or confidentiality to anyone I think oh that's it all right okay so thank you I'll hang around but thank you thank you