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‘Noble, but thorny’: A guide to complying with federal harassment, violence legislation

On Jan. 1, 2021, the much-anticipated Bill C-65 amendments to the Canada Labour Code that apply to federally regulated employers will come into effect.

In some workplaces, the new provisions will substantially alter existing procedures for addressing behaviours that are perceived as harassment or violence, and employers will have a responsibility to design and implement a comprehensive program for assessing the risks of harassment and violence occurrences, preventing these behaviours as much as possible, addressing occurrences that do arise, and supporting workers who are affected.

One of the new obligations for employers is to “make every reasonable effort to resolve an occurrence.”

Noble, but thorny

Requiring employers to attempt the resolution of workplace harassment and violence complaints is a noble but thorny imposition.

As we all know, many harassment and violence allegations are factually complex and subjective in their nature, and they are often advanced only after the behaviour complained of has burned a sizable hole in a workplace relationship.

For employers, a logical question is: “How do we make every reasonable effort to resolve this complaint, when we don’t even know if it is valid?”

Tactics for employers

Here are some suggestions.

Foster a workplace culture that embraces humility.  There, we said it.  Humility is an underdeveloped characteristic in our society, and its absence from your workplace is going to make resolving harassment and violence occurrences especially difficult.

We’ve all heard the familiar phrase “he said, she said” used in the context of an interpersonal offence, and we know that, often, the parties to an interpersonal conflict retreat to the safety of legalistic when accused of wrongdoing.

“Prove it” is likely as common a response to a complaint as is “Gee, I’m sorry about that – I messed up.”

In a workplace culture that encourages the recognition of our fallibility, ownership of wrongdoing and constructive acceptance of feedback becomes easier and, in turn, that facilitates the resolution of conflict.

It’s a big, counter-intuitive goal to pursue, but if you can promote humility amongst your staff members it will make the early resolution of harassment and violence complaints more possible.

Know your conflict resolution options (and increase your competency in at least one).  In conflict resolution, there is a difference between “making an effort” and “making every reasonable effort.”

The first could end with a simple question to the complainant and the respondent: “Are you willing to try to resolve this issue?”  Even if the answer is a resounding “no”, we suppose it can be said that a resolution effort was made.

In order to make every reasonable effort, however, employers should develop their knowledge in conflict resolution models and procedures like mediation, conciliation, and even restorative justice.  Depending on the nature of the complaint being considered, a particular model might be clearly appropriate, and a competent application of that model might lead to a resolution.

Increase your capacity for tough discussions.  Many managers (and people in general) struggle with discussing hard subjects like workplace harassment and violence.

There is no easy way to say “Let’s talk about your offensive behaviour, shall we?”

For that reason alone, efforts to resolve workplace conflicts are not always maximized.  The good news is that having tough but constructive discussions is a skill that can be developed and, like skating or riding a bike, the skill becomes more comfortable with practice.

By developing your organizational capacity for emotionally difficult conversations, you will automatically increase the prospect of resolving harassment and violence complaints.

Put your early resolution plan in writing and rehearse it.  The regulation requires informal resolution procedures to start within 45 days of receiving notice of the occurrence.

In order to maximize your efficiency, create a clear and understandable plan for initiating and pursuing a resolution, then communicate it to the parties in a timely manner.  Having a plan is one thing; being able to implement it is another.  Rehearse your plan so that you will be comfortable explaining and implementing it.

Recognize that conflict resolution and “legal justice” are not the same things.  Bill C-65 promotes settlement of harassment and violence occurrences when possible.

When pursuing a settlement, focus on legal justice procedures (“Prove it!”) and outcomes (such as punishment) won’t necessarily help.

Conflict resolution processes like mediation, conciliation and restorative justice have been proven effective and powerful, especially in ongoing relationships like employment, but they require a different mindset.  Putting that mindset into effect can be a challenge, and it requires deliberate effort.

A frightening intersection for employers

The resolution provisions of SOR 2020-130 represent an interesting intersection of legal justice and conflict resolution processes, which are contrasting approaches to solving disputes.

Just as driving a car in North America and driving a car in the United Kingdom are different ways to achieve a similar outcome, legal justice and conflict resolution are also distinct.

The intersection will be frightening for some employers, but development of the skills will be ultimately beneficial to employers and employees.