One in four women and one in ten men say they have experienced some form of sexual harassment in the workplace. Of the reported cases of workplace sexual harassment, 55% were committed by co-workers; 39% of which involved a supervisor or manager. 8% of those who are sexually harassed at work report the harassment.

Recently there have been some changes made to Bill 168 – Violence in the Workplace, which gives employers’ statutory obligations. Bill 132, Sexual Violence and Harassment Action Plan Act, which received royal assent on March 8, 2016, requires all employers to have policies and programs including an investigation procedure. The essential changes brought by Bill 132 include: an employer is required to create a workplace harassment program; the program must include reporting and investigating tools for incidents of workplace harassment and violence; the employers must ensure that all complaints are investigated, and investigations are completed in a timely fashion and a new power to the Ministry of Labour (MOL) to order an independent workplace harassment investigation at the employer’s expense.

September 8, 2016, now looms for companies as the date for compliance with Bill 132. The amendments stand to change dramatically how workplace harassment is addressed in Ontario. The new OHSA obligations and expectations have been set and are accompanied by expanded government oversight. Harassment in the workplace is already a challenging issue that could engage multiple forums, with complaints possibly being advanced through a grievance, civil claim, complaint under the Human Rights Code, and, depending on the severity of the conduct, the criminal justice system.

Also, and particularly, the Bill amends the OHSA to require an employer to conduct an investigation of a workplace harassment complaint that is “appropriate in the circumstances.” The phrase “appropriate in the circumstances” is not defined. Further, the Ministry of Labour has not published any guidance material to communicate what factors will be considered by inspectors when determining whether an investigation meets this standard. Assuming that the inspectors could be evaluating investigations against expected best practices which would include such things as an impartial investigator, a collection of all relevant information, and procedural fairness to the alleged harasser could create challenges for employers as the appropriateness of an investigation may be evaluated in hindsight.

Consequences of flawed investigations would impair or prejudice the employer’s ability to establish just cause for termination or discipline. There would also be an issue of due diligence under the OHSA and Human Rights Code. Consequences would include aggravated, punitive or Code damages; penalties from the Ministry of Labour under the OHSA and reinstatement in unionized workplaces. Some of the critical mistakes some employers are making include: failing to act at all; taking the complaint seriously; failure to train investigators; inability to plan, improper or inadequate files; and retention of evidence.

Many situations happening in the workplace may prompt the necessity for an investigation, such as allegations of discrimination or harassment, workplace bullying, inappropriate use of the internet or social media, policy breaches, or statutory violations. Often, employers attempt to resolve minor issues informally through discussions with the employees involved. When the allegations are more serious, employers may depend on managers to conduct internal investigations. However, in many situations, having an organization deal directly with the problem is not necessarily the best approach – informal discussions may rapidly collapse, and basic investigative steps may be overlooked by inexperienced managers, making matters worse. A vital skill for any employer is identifying when a formal investigation by an external investigator is appropriate.

Note: meeting the requirements of Bill 132 could lead to mistakes that can be costly to your organization.

Be prepared. Be proactive.

Contact Monika Jensen, Principal Aviary Group at [email protected]  or (905) 683-9953 if you need a complaint investigated or mediated.

Complaints of harassment, discrimination, bullying and now violence and disrespectful workplaces have become a standard concern for managers and Human Resources specialist. As we cope with the many arising situations, I have found the word incivility is becoming frequently used. So what does incivility mean? To define it, let’s look at how the Institute of Civility describes it. Civility is about more than merely being polite. Civility requires a profound self-awareness being characterized by true respect for others. Civility involves the tremendous hard work of remaining present even with those with whom we have inherent and perhaps fierce differences. It is about continuously being open to hearing, to learning, to teaching and to changing. It pursues mutual ground as a start point for discussions when differences may occur, while at the same time be aware that differences are heartening. It is persistence, grace, and strength of character.

Recently research has expanded our practical understanding of incivility by identifying behaviours which employees have deemed disrespectful. The most frequently occurring forms include: neglecting to turn off cell phones; talking behind someone’s back; doubting someone’s judgement, using demeaning or disparaging language, gestures or behaviours; communicating with the intent to belittle or degrade, eye rolling, giving the silent treatment and using sarcasm; gossip and slander; paying no attention or ignoring someone; taking credit for someone else’s work or ideas; intimidation by intentionally using fear to manipulate others. It may also include yelling, invading personal space, throwing things, slamming things and losing one’s temper; and sabotaging by setting someone up to fail or intentionally creating a situation to make another person look foolish or incompetent. Also may include hate-ism by deliberately pointing at a victim based on age, gender, race or sexual orientation are instances of profiling because of an “ism.”

Many examples include blaming others rather than accepting responsibility; checking email or texting during a meeting; using email to send a difficult message to avoid facing the person, which may be misunderstood and misinterpreted; not saying “please” or “thank you”; not listening and talking over or down to someone.
The cost of incivility is high. It is not only about money! There is research to support impacts on performance through lost time and absenteeism, lack of creativity, less helpfulness and less likely to assist another employee. The impact of teams is on the level of energy, emotional engagement, and performance. The conduct reaches into our physical health; impacts our customers and commitment to the organization and willingness of employees to stay with their companies. All affecting the bottom line of productivity.
So how do we address these issues? I would like to explore some recommendations for your consideration. It starts with us as individuals. Managing ourselves. How? If you throw a ball at the wall…it comes back. It works with people too. If you are, mean…it comes back! People will be mean to you.

How can you be kind and patient all the time when life is so stressful—and just plain hard? You do it by embracing civility! Civility requires self-awareness.

With self-awareness you can:
 Control your attitude
 Manage your moods
 Choose behaviours that do not negatively impact your life or disrupt those around you

Can you…
 Feel and express annoyance, irritation or frustration without hurting others— and then let it go?
 Accept and even appreciate that other people have needs and opinions which are different from your own?
 Encourage and enjoy the successes of others?
 Recognize when someone else feels irritated, upset or frustrated and keep yourself from reacting impulsively in response?

As leaders, we need to model. The Russian novelist, Leo Tolstoy wrote: “Everyone thinks of changing the world, but no one thinks of changing themselves.” Employees look to leaders for guidance and someone to aspire too. What are they seeing? Watch your language and put away your smartphones when engaging with your staff. Be mindful of the perils of emails and other electronic communication. Pick up the phone or set up a face to face meeting instead. Take immediate and corrective action when warranted. Rude and disrespectful behaviours emerge quickly and sometimes without warning. As the leader, you need to respond at the moment. By delaying a reaction or action, it sends out mixed messages to the offender as well as the entire team. Take all complaints seriously, realizing that coming forward by the individual is difficult, and they need to know they are supported.

We attend seminars and workshop on harassment prevention, Creating Respectful Workplace and Violence in the Workplace. I have put together a workshop on “How Embracing Civility can Create More Satisfying Work Environments”. The agenda is:
• Why Civility Matters
• It Starts with You!
• Do What You Say and Say What You Mean
• Good Fences Make Great Neighbours
• Working in the Salad Bowl
• Eliminate Gossip and Bullying
• You Can’t Always Get What You Want
• Taking It to the Extreme
• Paving the Path to Civility

Contact Monika Jensen, Principal, Aviary Group, at [email protected]  if you are interested.