The View from Here: Learnings on Bullying and Harassment Obligations, 6 Years Later
For Alberta employers, both provincially and federally regulated, significant changes are on the horizon. Highlighted by movements like #metoo and changes to safety legislation to include toxic, unwelcome behaviours as safety concerns, employers in Alberta face increased obligations to implement policies, train employees, investigate, and address problematic workplace behaviours.
Where to from here? Looking across the Rockies, BC is now six years post similar legislative change. The BC experience provides lessons for employers in Alberta as to what they can expect, and insight into best practices to navigate Alberta’s new and evolving legal landscape. Our firm – operating in BC and Alberta – has handled hundreds of workplace investigations since 2013 and has learned some important takeaways. The “rear-view mirror” perspective of six years provides important guidance to assist Alberta employers on their road forward.
What’s Changed in Alberta?
In Alberta, the new Occupational Health and Safety Act came into force on June 1, 2018, echoing legislation in other provinces to incorporate workplace harassment definitions into the statutory safety regime. Under the new Act, employers have responsibilities related to harassment and violence in the workplace, including to provide training, develop policies, and as far as reasonably practicable, to ensure workers are not subjected to or participate in harassment or violence at the work site. All employees are obligated to report unsafe conditions that include bullying or harassment and employers must investigate complaints.
For federally regulated employers, the changes are just coming into effect. In 2018, the federal government amended the Canada Labour Code to address harassment and violence in the workplace. Recently, the federal government proposed draft stand-alone regulations to accompany the CLC amendments addressing workplace harassment and violence. The regulations require employers to have a workplace harassment and violence prevention policy, to provide training, and to investigate.
Benefits of Hindsight: BC, Six Years Later
While there are many lessons that we could highlight, we have identified three from the BC experience that relate to employers’ obligations under the legislation: policies, training, and investigating.
1. Meaningful Policies
We have seen hundreds of policies. Each policy is different and while there are certainly some clauses that are better than others, and some policies that could use a “do over”, all of them have met the basic statutory requirements.
But is that enough? Policies are generally “top down” instruments. Designed by legal or HR staff, and then blessed by senior leaders or boards, policies are rarely developed with any involvement from employees, despite that it is the employees that the policy is intended to serve.
One of the hindsight learnings from BC is that, for many employees, the message behind these policies is lost in the perception that they are moral instruments – that respectful workplace policies are an attempt by senior leaders to tell employees how to feel, what to think, and dictate to them what they can believe.
This morally driven message –if that is how the policy is received – will not engage many employees. To the contrary, our experience is that if they even read it, this type of policy will either turn employees off, or shut down their willingness to listen and learn.
Code of Conduct- In our experience, having employees work together to create a Code of Conduct that, in effect, echoes the obligations they would have under an employer driven policy, is a far more meaningful tool. An employee created Code of Conduct becomes an individual and collective commitment to how they want to be treated, and how they will treat others. The model for this tool comes from the school system, where students are increasingly being asked to create a school Code of Conduct, thus increasing each student’s accountability to ensure their school is safe and welcoming for all.
Tip #1: Make policies meaningful – use a Code of Conduct
2. Training with Traction
We’ve delivered training on respectful workplace content for years. What we know from delivering hundreds of these sessions is that respectful workplace training is “cringey”. When we deliver training, it is not unusual for employees to disclose that they are dreading attending the session and their body language often reflects the same: arms crossed, eyes rolling.
In BC in 2013, we watched many employers deliver rote training using tools like online learning and video conferencing. They got the job done and checked their legal obligation box. They missed a great opportunity, though, to engage employees in meaningful conversations about the importance of workplace culture and the type of environments where employees thrive. If the culture of work is bad, it has immense effects on the organization and the ability of those in it to meet their respective goals. If the culture of work is ok, we are unlikely to foster excellence and innovation. If the culture of work is great, employees will thrive, as will the organization.
Alberta employers have an opportunity to deliver this training differently – to ensure that it has traction. Ideally those that participate, even those who start the session with arms crossed and eyes rolling, leave the training feeling connected to the content and inspired to do their part to do things differently.
Ensuring that training delivers a meaningful message means knowing your audience. The message needs to be one that resonates for the employee group in question. Employees need opportunities to participate and make the connections themselves as to why we should all want a positive, respectful environment at work. Ways to do this include:
- Engaging the employees in one-on-one interviews prior to training to hear their stories. All employees have them, whether from their previous or current workplace, or about their partner or friend. Their stories are important. Hearing their stories and shaping the training to touch on their individual stories, in a confidential manner, will immediately improve the effectiveness of the content.
- Using storytelling as an important way to involve participants. A slide that simply notes the statutory content is not helpful. A slide that has uses an engaging story of a workplace incident to highlight the legal obligation or right will educate and
- Not using the training to impose morals on staff, but rather with a focus on creating a workplace where employees are productive, focused and successful. For many years, employees have understood their obligations where safety is concerned and so that is how this conversation should be framed to be most effective. What does this mean? It means highlighting concepts like the significant impact that a toxic (and hence unsafe) work environment can have on the:
- health and personal lives when these stressors are present, including, inability to focus, increased absenteeism, self-medication, lack of sleep, impact on personal relationships
- productivity and quality of work
- culture and morale
- recruitment and retention
- collaboration and effectiveness of teams
- innovation and creativity
Employers in Alberta are now mandated to provide training. If it has to be done, why not do it in a manner that inspires and engages? Improving behavior of employees may be one of the best HR investments a company can make, and this is a great opportunity to make a positive change.
Tip #2: Don’t just check the box on the training – deliver training with traction.
3. A Reactive Model
Complaints of bullying and harassment, sexual harassment, or racial discrimination can contain very serious allegations. The complaints give rise to risk, public relations concerns, legal liability, are stressful, and can be a divisive and destructive process for an organization. These types of complaints are almost always considered to be urgent and highly important. In short, they are crisis driven.
What we know from six years of experience is that acting quickly is important, but it cannot be the first driver. Being thoughtful, considered, and ensuring that an appropriate plan is in place is a much better way to respond. As we expressed to a client recently, doing things quickly cannot override doing things right. Most employers know how to handle other crisis driven safety emergencies in a planned and thoughtful manner, so why not take the same measured approach for complaints of bullying and harassment?
The biggest mistake we see is employers acting too fast and emotionally, and then making serious process errors as a result. Examples include biased decisions, failing to follow fair process, breaching the policy in terms of process steps, communicating information too broadly, and engaging the wrong person to investigate (such as a manager who is also a witness).
Proper planning includes consideration of:
- Must you investigate?
- Who will investigate?
- Who will be involved (complainant, respondent(s), witnesses, decision makers, legal advisors)?
- Who needs to know what? How, what, and when do we communicate?
- What happens after the investigation is complete?
- What did we learn? How we do translate those learnings to improvements?
Tip #3: Pause and plan. Don’t react.
Employers in Alberta have an exciting opportunity to effect change in their workplaces while aligning with their new obligations under the Occupational Health and Safety Act and the Canada Labour Code. We encourage you to be creative, resourceful, and thoughtful as you develop your policies and training and engage in workplace investigations.
Lisa Southern and Jennifer Hawkins are workplace lawyers and investigators at Southern Butler Price. For more information, visit southernlaw.ca.
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