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Informal resolution efforts will soon be mandatory in harassment, violence cases

The federal government’s Bill C-65 becomes effective on Jan. 1, 2021 as a legislative response to high incidents of workplace harassment and violence in Canadian workplaces.

Research confirms that harassment and violence are experienced by many Canadian workers and often cause long-lasting illnesses and psychological injuries, as well as a plethora of damaging organizational impacts.

In the leadup to Bill C-65, An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1 coming into force, much will be made of the employer “to-do list” that includes the provision of training and, in some circumstances, formal investigations by “competent persons.”

Quite frankly, these are two aspects of the new legislation that will cause many employers to seek out (and pay for) the services of consultants and consequently, consultants will be sure to talk about these two requirements.

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What may receive less attention is the provision found in Bill C-65 that facilitates internal resolutions to harassment and violence complaints, without the need for a full-blown investigation process.

That is a crucial element of the harassment and violence complaint process that could spare employees and employers from emotionally exhausting and financially draining formal investigations.

What Bill C-65 says about in-house resolutions

It’s interesting that Bill C-65 makes informal resolution efforts mandatory in harassment and violence cases.

Many employers currently have anti-harassment policies that allow for informal complaint resolutions, but ss. 127.1(2) of the amended legislation will require efforts toward early and informal resolution:

The employee and the supervisor or designated person, as the case may be, shall try to resolve the complaint between themselves as soon as possible. (emphasis added).

The complaint is only advanced to a formal investigation if the parties fail to resolve the complaint at that early, mandated informal stage.

How to take advantage of early resolution

Employees and employers can achieve real and lasting resolutions to workplace harassment and violence issues at the earliest stage of a complaint if they take the right approach.

A short summary of some key elements in that approach are:

Create a psychologically safe work culture 

This may sound like an obviosity, but it isn’t.  Your team’s well-being goes beyond health and safety, although those are key elements.  Instead,  your team and its members will enjoy exceptional well-being if and when, as a team, you are able to establish a culture of psychological safety.

Establish the right policy objective from the start

Everyone in your organization should understand that your harassment and violence policy is not designed as a penal code that has a primary purpose of punishing people.

Instead, it is a document that helps to keep people safe in your workplace by compelling actions to stop misconduct. If your staff members view your policy as a tool for retribution, you’ve already got a problem.

Hire and train supervisors who have the right skills 

Your supervisors and “designated people” are charged with trying to resolve harassment and violence complaints informally, but will they be any good at it?  Not unless you hire the right kind of people for the job and then train them effectively.

How? One way to think of this is to remember the last time you personally made a customer complaint to a store or restaurant. How satisfied were you with the response you received?

Chances are your reaction to the company’s response depended on how well the company answered your expectations in three categories:  i) procedural justice, including the existence of a transparent complaints procedure; ii) interactional justice, being the attentiveness and understanding that was extended to you; and iii) distributive justice, which captured the action taken by the company to provide you with relief. Research suggests that interactional justice is crucial to achieving successful complaint outcomes in both retail shopping and workplace injustice complaints.

A problem for many employers and their supervisors will be their failures to understand that a blend of appropriate skills and knowledge will often make the difference between resolving workplace harassment and violence complaints at an early stage or having them linger in more emotionally and financially demanding investigation processes.

Bill Howatt is the Ottawa-based president of Howatt HR. Kelly VanBuskirk is a partner with Lawson Creamer in Saint John, N.B.