Is Your Workplace Harassment Policy Adequate?

Jon W. Danyliw

The Saskatchewan Workers’ Compensation Board reports that in 2018 there were 16 per cent more workplace injuries caused by violence in Saskatchewan than in 2017. Workplace violence encompasses all situations in which an employee is abused, assaulted, threatened or harassed.

When we think of violence, bullying and harassment may not immediately come to mind. However, it is clear that claims of bullying and harassment are on the rise, and that these incidents should be taken very seriously.

Workplace harassment can include harassment based on prohibited grounds such as race, sex or religion and what is known as personal harassment, which includes conduct or actions commonly referred to as bullying.

Harassment is defined in the occupational health and safety provisions of The Saskatchewan Employment Act as:

  1. any inappropriate conduct, comment, display, action or gesture by a person that is either
  2. based on race, creed, religion, colour, sex, sexual orientation, marital status, family status, disability, physical size or weight, age, nationality, ancestry or place of origin; or
  3. that adversely affects the worker’s psychological or physical well-being and that the person knows or ought to know would cause a worker to be humiliated or intimidated; and
  4. that constitutes a threat to the health or safety of the worker.

Harassment does not include reasonable actions taken by employers, managers or supervisors relating to the management and direction of the employer’s workers or place of employment.

In addition to defining harassment, the legislation imposes a duty on employers and supervisors to ensure, insofar as is reasonably practicable, that workers are not exposed to harassment. Workers have a corresponding duty to refrain from causing or participating in the harassment of another worker.

In the event an employer is faced with an investigation into allegations of harassment under the occupational health and safety provisions of The Saskatchewan Employment Act, the employer must be able to demonstrate that it took all reasonable actions to ensure workers were not exposed to harassment. The first step in demonstrating this is to ensure that it has a proper policy to prevent harassment in place.

In fact, section 36 of The Occupational Health and Safety Regulations, 1996 requires employers to develop a written harassment policy in consultation with their occupational health and safety committee. By law, such a policy must be posted in a conspicuous place readily available to workers and must include:

  1. a definition of harassment that includes the definition in The Saskatchewan Employment Act;
  2. a statement that every worker is entitled to employment free from harassment;
  3. commitments by the employer to make every reasonably practicable effort to ensure workers are not subjected to harassment and to take corrective action respecting those under the employer’s direction who subject a worker to harassment;
  4. an explanation as to how a complaint of harassment may be brought to the attention of the employer;
  5. a statement that the identities of a complainant or alleged harasser or the circumstances of the complaint will not be disclosed except where it is necessary to investigate the complaint, take corrective action or as required by law;
  6. a reference to the provisions of The Saskatchewan Employment Act respecting harassment and the worker’s right to request the assistance of an occupational health officer to resolve a complaint of harassment;
  7. a reference to the provisions of The Saskatchewan Human Rights Code respecting discriminatory practices and the worker’s right to file a complaint with the Human Rights Commission;
  8. a description of the process that will be used to inform the complainant and alleged harasser of the results of the investigation into a complaint of harassment; and
  9. a statement that the harassment policy is not intended to discourage or prevent a complainant from exercising any other legal rights pursuant to any other law.

In addition to the implementation of a policy on harassment, employers must ensure that the policy is adequately communicated to its employees. Even the most well-thought-out and carefully prepared policy will be of little use if those to whom the policy applies are unaware of it or do not understand it.

Employees should be provided with a copy of the policy and be asked to provide an acknowledgement that they have reviewed it. In addition, to demonstrate their commitment to providing a harassment free workplace, employers should promote awareness through information meetings and training. This includes training for managers and supervisors so that they know what to do, or who to contact, if they receive a complaint of harassment.

Does your company have a harassment policy?  Does it comply with the requirements of the legislation?  Are your employees familiar with the policy and their obligations to contribute to a harassment free workplace?

Jon W. Danyliw
McKercher LLP
374 Third Avenue South, Saskatoon, SK
(306) 653-2000