Appendix B - Recourse Options and Outcomes Summary

ESDC is committed to addressing workplace harassment and violence occurrences promptly, with sensitivity, fairness and an emphasis on informal, early resolution. Early intervention is key to achieving satisfactory outcomes.

The principal party, and responding party if contacted, must make every reasonable effort to resolve an occurrence. If resolution is not achieved, the principal party may choose to proceed with recourse options including conciliation and/or investigation under the Regulations. Employees can also choose to pursue resolution through other avenues concurrently

The following reflects available recourse options to address allegations of workplace harassment and violence and the possible outcomes for each process.

Workplace harassment and violence complaint under the Canada Labour Code Part, II

Definition / Nature of Allegations:

Harassment and violence
Harassment and violence means any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee.

Investigation Process:

1) Timelines to file the complaint
No prescribed timelines.
2) Participation requirements
Employees must co-operate in the resolution of an occurrence. An anonymous complaint can be submitted but the occurrence cannot proceed to an investigation.
3) Investigator requirements
Must be selected from the qualified list of investigators, which is jointly developed, by the employer and PHSC. Qualifications include knowledge and training related to workplace harassment and violence, investigation techniques and the CLC and CHRA.
4) Parties privy to the report
Employer, principal party, responding party, designated recipient and workplace health and safety committee receive final report. Reports contain no identifying information, including the names of any parties.

Resolution / Conclusion:

1) Outcome
Recommendation on preventive / corrective measures to eliminate or mitigate the risk of a similar occurrence in the future.
2) Personal remedy available
No
3) Can the process be used as a basis for discipline?
No. A separate administrative investigation would need to be conducted. (e.g., fault finding distinct from health and safety framework).

Discrimination complaint under the Canada Human Rights Act (CHRA)

Definition / Nature of Allegations:

Discrimination
Discrimination is an action or a decision that results in the unfair or negative treatment of person or group because of their race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and a conviction for which you have been granted a pardon.

Investigation Process:

1) Timelines to file the complaint
One (1) year.
2) Participation Requirements
Parties and witnesses expected to participate and could be compelled if the case is referred to the Canadian Human Rights Tribunal.
3) Investigator Requirements
Canadian Human Rights Commission (CHRC) determines requirements.
4) Parties privy to the report
Complainant, Respondent, Deputy Minister, Corporate Labour Relations.

Resolution / Conclusion:

1) Outcome
Where discrimination may exist, the CHRC investigator could recommend referral to Canadian Human Rights Tribunal (CHRT).
2) Personal remedy available

No.  CHRT could award damages. Up to 20k for pain and suffering, up to 20k for willful and reckless discrimination and other discretionary remedies.

3) Can the process be used as a basis for discipline?
Yes

Harassment and discrimination grievances under the applicable Collective Agreement

Definition / Nature of Allegations:

Grievance
With some exceptions, an employee can file a grievance as it relates to their terms and conditions of employment including a grievance alleging violation of the "no discrimination" clause in the applicable collective agreement.

Investigation Process:

1) Timelines to file the complaint
Twenty-five (25) days following the last event that gave rise to the grievance.
2) Participation Requirements
Complainant, Respondent and Witnesses may be compelled to testify if the grievance is referred to adjudication.
3) Investigator Requirements
No requirements. Could be investigated by management, HR, or a third party.
4) Parties privy to the report
Labour Relations, Grievance Step Officer, and other parties as determined on a case-by-case basis.

Resolution / Conclusion:

1) Outcome
Grievance allowed, partially allowed, or denied and potential for corrective measures to be implemented.
2) Personal remedy available.

No. Unless settlement negotiated in response to grievance.

3) Can the process be used as a basis for discipline?
Yes

Disclosure of wrongdoing in the workplace under the Public Servants Disclosure Protection Act

Definition / Nature of Allegations:

Wrongdoing
Wrongdoing relates to serious violations that go against the public interest, such as: violating any Act of Parliament or any Act of the legislatures of the provinces, misusing public funds or public assets; gross mismanagement in the public sector; doing something or failing to do something that creates a substantial and specific danger to the health, safety or life of persons or to the environment, seriously breaching the Values and Ethics Code or your organization's code of conduct or knowingly directing or counselling a person to commit a wrongdoing set out above.

Investigation Process:

1) Timelines to file the complaint
No prescribed timelines.
2) Participation Requirements
The employee preferably provides their disclosure of wrongdoing in writing which includes the date and description of the alleged wrongdoing. Your identity and other information regarding a disclosure will be protected to the extent possible and subject to other Acts of Parliament and principles of procedural fairness and natural justice.
3) Investigator Requirements
A neutral and professional investigator may be called upon. Cases concerning criminal activity will be referred to the appropriate law enforcement authority.
4) Parties privy to the report
Deputy Minister, Senior Disclosure Officer, and other parties as determined by the Senior Disclosure Officer on a case-by-case basis.

Resolution / Conclusion:

1) Outcome

If wrongdoing is found, the appropriate corrective and/or administrative measures are implemented and information on the wrongdoing is made available to the public.

If no wrongdoing is found, the Senior Disclosure Office may take control measures to prevent or avoid future wrongdoing, and may address any other concerns uncovered by the investigation.

2) Personal remedy available

No

3) Can the process be used as a basis for discipline?
If wrongdoing is found, the appropriate corrective and/or administrative measures recommended by the Senior Disclosure Officer are implemented by management. Management may decide to conduct a separate investigation or fact-finding exercise to determine appropriate disciplinary measures.