Introduction
In the six years since the passage of Bill 132, the Sexual Violence and Harassment Action Plan Act, 2016, investigations into workplace harassment have become commonplace, but uncertainty remains about the legislative requirement that an investigation be “appropriate in the circumstances”. The Act does not further define this requirement, and there is very little guidance in the relevant interpretative guides or case law.
Many of our clients – employees and employers alike – ask whether alternative dispute resolution (“ADR”), such as workplace mediation, can be used as a full response to allegations of workplace harassment. We see many workplace harassment policies that specifically identify pathways for informal resolution of a harassment complaint, including many that allow for mediation as an alternative to a formal investigation.
In this article, we consider whether workplace mediation can, on its own, satisfy the legislative requirement to conduct an investigation “appropriate in the circumstances”. We conclude that while workplace mediation is unlikely to satisfy the legislative requirement to conduct an appropriate investigation, workplace mediation and other ADR tools should be considered alongside a formal investigation process to restore the workplace after an acute conflict.
Background
In March 2016, the Ontario government passed Bill 132, entitled the Sexual Violence and Harassment Action Plan Act, 2016. Bill 132 amended several statutes, including the Occupational Health and Safety Act (“OHSA”), resulting in expanded employer obligations to prevent and respond to harassment and violence in the workplace.
Prior to Bill 132, employer duties under the OHSA with regards to harassment were minimal. Employers were only required to prepare workplace harassment and violence policies, and to assess the risks of workplace violence on an ongoing basis. Substantive allegations of harassment or of an employer’s failure to investigate harassment were predominantly dealt with through the Human Rights Tribunal (when they engaged a protected ground) or through the grievance/arbitration process (when the affected worker(s) were unionized).
The Bill 132 amendments mandated enhanced procedural safeguards, which required employers to respond to incidents and complaints of workplace harassment by, among other things, conducting an appropriate investigation.
These new procedural duties, and the Ministry of Labour, Training, and Skills Development’s enhanced oversight role, meaningfully altered the legal landscape in Ontario regarding workplace harassment and led to an influx of workplace harassment investigations.
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