Employment & Labour

Ex-federal workers can file complaints under CLC changes

By Jennifer Brown, AdvocateDaily.com Senior Editor

Former employees of federally regulated businesses will be able to make a complaint of harassment or violence up to three months after they leave their job when changes to the Canada Labour Code (CLC) come into force next year, says Toronto employment lawyer Doug MacLeod.

Bill C-65, An Act to Amend the Canada Labour Code regarding harassment and violence in the workplace, received royal assent on Oct. 25, 2018, but it has not yet been proclaimed into force.

The amendments to the Act will introduce a provision compelling employers to investigate any complaint filed by a former employee within three months of their leaving a job. If they fail to investigate, the employee can ask the minister of labour to appoint an investigator.

MacLeod, principal of MacLeod Law, predicts there may be some who file complaints after the fact for strategic reasons, especially if they believe a former manager was instrumental in their leaving an organization or a superior had a role in their dismissal.

“You might be able to get some information that you might not otherwise be entitled to once you leave an organization,” MacLeod, tells AdvocateDaily.com.

The three-month time limit may also be extended by the governor in council if the former employee applies for an extension.

Collective agreements that apply unionized federal employees may already contain comparable provisions.

The amendments to the CLC also include changes around reporting and investigating complaints of harassment and violence in the workplace that are already provided for in many provinces, MacLeod says.

“They have not said when it will be proclaimed into force other than sometime in 2020,” he says. “I don’t think they will be fining or charging anyone right off the bat. If an employer is not 100 per cent compliant when the changes are proclaimed into force, I doubt the government will charge people. Instead, I suspect they will be given a deadline to get into compliance.”

When the amendments do come into play, the CLC will also provide an explicit definition of harassment and violence that didn’t exist before for federally regulated employees.

“Strangely, the definition combines harassment and violence in one definition,” says MacLeod.

Harassment and violence will be defined within the amendments as “Any action, conduct, or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment.”

In the past, the Occupational Health and Safety section of the CLC contained language about preventing accidents and injuries in relation to the workplace. Now, s. 122.1 has been expanded to include preventing incidents of harassment and violence as well as psychological injuries.

“The purpose of this Part is to prevent accidents, occurrences of harassment and violence and physical or psychological injuries and illnesses arising out of, linked with or occurring in the course of employment to which this Part applies,” s. 122.1 reads.

New employer duties

Various new duties will be expected of employers in connection with workplace harassment and violence, including requirements to:

  • investigate, report, and record instances of harassment and violence
  • take prescribed measures to prevent and protect against harassment and violence in the workplace
  • respond to instances of harassment and violence and offer support to employees that are affected by such issues

Employers will also need to make available printed and electronic versions of the following documents:

  • the Occupational Health and Safety section of the Code and any regulations made under that part
  • a statement of the employer’s general policy regarding the health and safety of employees
  • any other information relating to health and safety prescribed or specified by the minister of labour

“These obligations underscore how important these changes are,” says MacLeod. “Now, there is a positive obligation to investigate, report and record incidents of harassment and violence. There is also a positive obligation to investigate and positive obligation to train and to inform employees of their rights,” he says. “In the past, employees didn’t know their rights, but now they have to be told what they are.”

Federally regulated employers will also require trained investigators to examine employee complaints.

“I suggest every organization send an internal person on a workplace harassment investigation training course,” says MacLeod. “If you’re a small, federally regulated employer, you will need to beef up your health and safety program as it relates to harassment and violence and invest some money into training and policymaking.”

In this legislation the federal government is also opting to deal with complaints internally — the Ministry of Labour doesn’t get involved unless the employer doesn’t comply, he says.

“If an employer doesn't comply with the new workplace harassment investigation requirements, then unresolved complaints related to harassment and violence can be referred to the minister of labour,” MacLeod adds.

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