Workplace Harassment

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Workplace harassment is an occupational health and safety issue that poses a potential risk to the physical and psychological health and safety of workers. Growing evidence suggests that exposure to harassment in the workplace has serious negative outcomes for everyone and must be addressed if and when it does occur. The Workplace Harassment Regulations define the responsibilities of the employer and worker, and must be followed in all PEI workplaces.

Workplace harassment can take many forms, including verbal aggression, personal attacks, and intimidating or humiliating behaviour. Harassment is formally defined as:

“any inappropriate conduct, comment, display, action or gesture or any bullying that the person responsible for the conduct, comment, display, action or gesture or the bullying knows, or ought reasonably to know, could have a harmful effect on a worker's psychological or physical health or safety, … ” [WH Regs., s.1]

The definition continues to define that conduct based on any personal characteristic, or any inappropriate sexual conduct that is known, or ought reasonably to be known, can be considered harassment when it can have a harmful effect on the worker's psychological or physical health or safety and is: [WH Regs., s.2]

  • repeated inappropriate conduct, comments, displays, actions or gestures or incidents of bullying; or
  • a single occurrence of inappropriate conduct, comment, display, action or gesture or bullying.

Note that reasonable action taken by an employer or supervisor that relates to the management and direction of the workers or of the workplace is not workplace harassment. [WH Regs., s.2]

Employer’s Responsibilities

The employer must, in consultation with the health and safety committee or representative (if any), develop and implement a written policy to prevent and investigate harassment. The policy must include: [WH Regs., s.4]

  • a definition that is consistent with the regulations;
  • a statement that:
    • every worker is entitled to work free from harassment;
    • the policy is not intended to discourage, prevent or preclude a complaint from other legal rights, including under the Human Rights Act of PEI;
    • the employer will not reprimand, seek reprisal, or discriminate against a worker who has made a workplace harassment complaint in good faith;
  • a commitment that the employer will, as far as reasonably practicable, make sure that no worker is subjected to harassment;
  • a commitment that the employer will take corrective action when any person (under the employer’s direction) subjects a worker to harassment;
  • information or procedures about:
    • how to make a complaint about harassment to the employer or supervisor, or to another person (if the employer or supervisor is the subject of the complaint);
    • how the complaint will be investigated; and
    • how the complainant and the subject of the complaint will be informed of the results of the investigation, and what corrective action, if any, has or will take place.
  • a statement that the employer will not disclose any identifying information unless it is necessary for the purposes of investigation or if permitted by law.

To investigate, the employer must use an impartial person from within or outside the workplace who is not directly involved, under the control of the person who is subject of the complaint or have a conflict of interest, and who has knowledge of the workplace harassment provisions in the Act and Regulations. [WH Regs., s.4 (2)]

The employer must make the harassment policy readily available to workers. [WH Regs., s. 4(3)]

Employers who know, or reasonably ought to know, that harassment is occurring in their workplace must make sure that: [WH Regs., s.5]

  • the source of the harassment is identified and the harassment is stopped; and
  • reasonable steps are taken to deal with the effects, and to prevent or minimize future incidents.

The employer must make sure an investigation appropriate to the circumstances is conducted. [WH Regs., S.6]

Workers Responsibilities

Workers must cooperate in the investigation of a harassment complaint. [WH Regs., S.3 (2)] Workers must also keep the details of a harassment complaint confidential unless disclosure is necessary to be able to report the incident, or to cooperate in the investigation. [WH Regs., S.3 (1)]

Investigation by an Officer and/or an Impartial Person

An officer may request to view a copy of the employer’s harassment policy while inspecting the workplace.

An officer may issue an order when it has been determined that the employer has not developed a written policy that meets or is inconsistent with the requirements of the regulations. In addition, an officer may issue an order when the employer: [WH Regs., S.7]

  • has failed to follow the policy when responding to a complaint;
  • has failed to take reasonable steps to resolve the complaint; and/or
  • has contravened the Act or Regulations.

The officer may also order the employer to use an impartial person to conduct an investigation. The impartial person must have knowledge, experience or other investigation qualifications. [WH Regs., S.7] At the end of this investigation, the impartial person must make a determination if workplace harassment occurred, and may make recommendations to the employer about corrective action. [WH Regs., S.8] After this time, it is the employer’s responsibility to determine what corrective action is required for the circumstance, and implement those actions. If the employer fails to do so, an officer may order the employer to take steps the officer considers necessary to remedy the harassment and prevent further occurrences. [WH Regs., S.9]

S. 1 (b)(i) conduct that is based on any personal characteristic such as, but not limited to, race, creed, religion, colour, sex, sexual orientation, marital status, family status, disability, physical size or weight, age, nationality, ancestry or place of origin, gender identity or pregnancy, and
S. 1. (b)(ii) inappropriate sexual conduct that is known, or ought reasonably to be known, to the person responsible for the conduct to be unwelcome, including, but not limited to, sexual solicitations or advances, sexually suggestive remarks, jokes or gestures, circulating or sharing inappropriate images, or unwanted physical contact.
When done reasonably and fairly, the following actions should not be considered workplace harassment:
  • with good reason, changing work assignments and job duties;
  • scheduling and workloads;
  • inspecting the workplace;
  • implementing health and safety measures;
  • delivering work instructions;
  • assessing and evaluating work performance;
  • disciplinary actions; and/or
  • any other reasonable and lawful exercise of a management function.

Workplace Harassment Regulations
EC2019-710

Part 1 INTERPRETATION AND APPLICATION

Section 1 Definitions

1. In these regulations,

(a) "Act" means the Occupational Health and Safety Act R.S.P.E.I. 1988, Cap. O-1.01;

(b) "harassment" means any inappropriate conduct, comment, display, action or gesture or any bullying that the person responsible for the conduct, comment, display, action or gesture or the bullying knows, or ought reasonably to know, could have a harmful effect on a worker's psychological or physical health or safety, and includes

(i) conduct that is based on any personal characteristic such as, but not limited to, race, creed, religion, colour, sex, sexual orientation, marital status, family status, disability, physical size or weight, age, nationality, ancestry or place of origin, gender identity or pregnancy, and

(ii) inappropriate sexual conduct that is known, or ought reasonably to be known, to the person responsible for the conduct to be unwelcome, including, but not limited to, sexual solicitations or advances, sexually suggestive remarks, jokes or gestures, circulating or sharing inappropriate images, or unwanted physical contact.

Section 2 Single and repeated occurrences

2. (1) For greater certainty, harassment as defined in clause 1(b) includes both

(a) repeated inappropriate conduct, comments, displays, actions or gestures or incidents of bullying that have a harmful effect on the worker’s psychological or physical health or safety; and

(b) a single occurrence of inappropriate conduct, comment, display, action or gesture or bullying that has a harmful effect on the worker’s psychological or physical health or safety.

(2) A reasonable action taken by an employer or supervisor relating to the management and direction of the workers or of the workplace is not workplace harassment.

Part 2 RESPONSIBILITIES OF WORKERS AND EMPLOYERS

Section 3 Confidentiality

3. (1) A worker shall keep the details of a harassment complaint confidential unless, and to the extent that, disclosure is necessary in order to report the incident of harassment or to cooperate in the investigation of the complaint in accordance with subsection (2).

(2) A worker shall cooperate in the investigation of a harassment complaint in the workplace.

Section 4 Employer responsibilities

4. (1) An employer shall, in consultation with the committee or representative, if any, develop and implement a written policy to prevent and investigate harassment in the workplace that includes

(a) a definition of harassment that is consistent with clause 1(b) of these regulations;

(b) a statement that every worker is entitled to work free of harassment;

(c) a commitment that the employer shall ensure, as far as is reasonably practicable, that no worker will be subjected to harassment in the workplace;

(d) a commitment that the employer shall take corrective action respecting any person under the employer's direction who subjects a worker to harassment;

(e) information or procedures about

(i) how to make a harassment complaint to the employer or supervisor,

(ii) how to make a harassment complaint to a person other than the employer or supervisor, if the employer or supervisor is a subject of the complaint,

(iii) how a harassment complaint will be investigated, and

(iv) how the complainant and subject of the complaint will be informed of the results of the investigation and any corrective action that has been or will be taken as a result;

(f) a statement that the employer shall not disclose any identifying information about any person involved or the circumstances relating to the complaint to any person unless disclosure is

(i) necessary for the purposes of investigating the complaint or taking corrective action with respect to the complaint, or

(ii) permitted by law;

(g) a statement that the employer’s harassment policy is not intended to discourage, prevent, or preclude a complainant from exercising other legal rights pursuant to any other law;

(h) a statement that the employer’s harassment policy does not preclude a worker from filing a complaint under the Human Rights Act R.S.P.E.I. 1988, Cap. H-12; and

(i) a statement that the employer shall not reprimand, seek reprisal or discriminate against a worker who has made a workplace harassment complaint in good faith.

(2) In order to ensure that an investigation appropriate to the circumstances will be conducted into a complaint of harassment in the workplace, an employer may refer the investigation to an impartial person within or outside the workplace who

(a) is not directly involved in the incident or the complaint;

(b) is not directly under the control of the person who is the subject of the complaint or otherwise in a conflict of interest; and

(c) has knowledge of the workplace harassment provisions of the Act and these regulations and other applicable laws.

(3) An employer shall make a copy of the harassment policy readily available to workers.

Section 5 Duty of employer

5. An employer who knows or ought reasonably to know that harassment in the workplace is occurring shall ensure that

(a) the source of the harassment is identified and the harassment stopped; and

(b) reasonable steps are taken to remedy the effects of the harassment and to prevent or minimize future incidents of harassment.

Part 3 INVESTIGATION

Section 6 Duty of employer - investigation

6. An employer shall ensure that an investigation appropriate to the circumstances is conducted into a complaint of harassment in the workplace.

Section 7 Officer’s powers respecting workplace harassment

7. (1) Where an officer has reason to believe that

(a) an employer has not established a written policy on workplace harassment that meets the requirements of section 4;

(b) an employer has established a harassment policy that is inconsistent with the requirements of the Act or these regulations;

(c) the employer has failed to follow the harassment policy in responding to a complaint of workplace harassment;

(d) the employer has failed to take reasonable steps to resolve a complaint of workplace harassment; or

(e) the employer has contravened a provision of the Act or these regulations with respect to the prevention or investigation of workplace harassment,

the officer may issue an order to the employer in accordance with section 8 of the Act.

(2) In addition to an officer’s authority under the Act, the officer may issue an order requiring the employer to cause the investigation of a harassment complaint to be conducted by an impartial person possessing the knowledge, experience or other qualifications acceptable to the officer, at the employer’s expense.

Section 8 Recommendation by impartial person

8. At the close of an investigation referred to an impartial person by an employer pursuant to subsection 4(2), or ordered by an officer under subsection 7(2), the impartial person

(a) shall make a determination as to whether workplace harassment occurred; and

(b) may make recommendations to the employer regarding corrective action.

Section 9 Determination by employer

9. (1) After consideration of any recommendations made by the impartial person pursuant to clause 8(b), it is the employer’s responsibility

(a) to determine the corrective action that is required in the circumstances; and

(b) implement that corrective action in accordance with clause 5(b).

(2) Notwithstanding subsection (1), where a determination has been made that harassment occurred in the workplace, and the employer has failed to determine the required corrective action or to take the necessary steps to implement the corrective action, an officer may order the employer to take the steps the officer considers necessary to remedy the harassment and prevent further occurrences.