RECENT LEGISLATIVE CHANGES IMPACT HOW EMPLOYERS ARE REQUIRED TO ADDRESS VIOLENCE AND HARASSMENT IN THE WORKPLACE

Amy Gibson Partner, MLT Aikins LLP

An Act to Amend The Saskatchewan Employment Act (the “Amendment Act 2022”) came into force on May 17, 2023, amending important employer duties regarding occupational health and safety as set out in The Saskatchewan Employment Act. New requirements to address workplace violence, harassment, and workplace investigations are now in force. As of May 17, 2024, all employers in Saskatchewan will be required to have a violence policy and prevention plan in place. Prior to the amendment, only high risk sector workplaces were required to have a violence policy and prevention plan.

While many organizations will already have a violence policy and prevention plan applicable to their group home and day program operations, it is best practice to review the policy and plan to ensure it is in compliance with the recent amendments and reflects the risks of violence within your organization. Organizations that do not have a violence policy statement and prevention plan in place, or do not have one that encompasses all areas of their operations, must ensure one is implemented by May 17, 2024.

Workplace Violence Policy

A violence policy statement and prevention plan is developed in consultation with the organization’s occupational health committee, the occupational health and safety representative, or the workers if there is no committee or representative. The policy and plan must include a commitment to minimize or eliminate risk, identify worksites where violent situations have occurred or may reasonably be expected to occur, identity staff positions that have been or may reasonably be expected to be exposed to violent situations, and include the procedure to follow when reporting a violent incident. They are to include actions the employer will take to minimize or eliminate the risk of violence, the procedure for documenting and investigating instances of violence, and a commitment to training. The policy and plan will also need to include a recommendation that employees receive post-incident counselling or consult a physician following an instance of violence.

The Amendment Act 2022 expanded the definition of worker, meaning the violence policy and plan now also applies to students, volunteers, and contract workers.

Copies of the policy statement and prevention plan must be readily available to employees. They are to be reviewed and revised if necessary every three years or whenever there is a change in circumstances that may affect the health and safety of workers.

Workplace Violence Training

Employers will need to ensure that all workers receive training on workplace violence. This training must include the means to recognize potentially violent situations, as well as the procedures, work practices, administrative arrangements and controls that have been developed to minimize risk of violence. Workers must also receive training on the appropriate response to incidents of violence and reporting procedures.

General Duties of Employers, Supervisors, and Employees

As a result of the amendments, employers and supervisors are required to “ensure, insofar as reasonably practicable” that workers are not exposed to violence in the workplace. This means that employers and supervisors must be aware of the risks of violence within their workplace and ensure steps are taken to reduce the risk of violence. Training should be provided to supervisors to ensure that they can fulfill this duty.

Further, pursuant to section 3-10 of The Saskatchewan Employment Act, there is now an express duty on employees to refrain from causing or participating in violence towards others in the workplace.

Workplace Investigations

The obligation on employers to investigate incidents of harassment and violence have been expanded. As a result of the recent amendments, an employer must conduct an investigation into any incident of violence or harassment in the workplace. Incidents of harassment include both formal complaints as well as suspected harassment. While this requirement is likely to expand the number of investigations in the workplace, not all workplace investigations will require a rigorous and lengthy review.

Employers should always ensure that the basics of an investigation are completed and followed.

Once it is determined that an investigation is required, the employer must decide who is the appropriate person to conduct the investigation. An investigator should be trained and experienced, be unrelated to the complainant to avoid bias or perception of bias, and have the authority and credibility to make findings in the investigation. Depending on the circumstances, an external investigator may be most appropriate.

An investigation should include interviews of the complainant, respondent, and other relevant witnesses. This may involve interviewing parties more than once. The investigator should ensure all steps taken during an investigation are documented and that information gathered remains confidential. Participants in the investigation process should be advised and reminded that what is discussed in the investigation is to remain confidential.

Good notes are critical in the investigation process. These notes, along with a review of the workplace policies and relevant laws, should be relied upon to draft a final report. The final report will include all the information received during the investigation, the conclusions reached, and any corrective action that is required. The final report is primarily an internal document. Subject to any policies or collective bargaining agreements that state otherwise, generally the complainant and respondent to a complaint are not entitled to receive a copy of the final report. They are entitled to be informed about the outcome of the investigation.

An investigation into harassment or violence can provide the basis for disciplinary action and addressing occupational health and safety concerns within the workplace. It is recommended that an organization consult their legal counsel if they are unsure of how a matter should be addressed in the investigation process. In the event that an employee decides to pursue an occupational health and safety complaint or challenge disciplinary action arising from an incident in the workplace, having a welldocumented investigation report can help provide a defence against any actions or proceedings that may arise.