Union News December 2018
Both the Union and the Employer agree unequivocally that no member should be subjected to bullying and harassment in the workplace. We all have the right to come to work and earn a living in a safe and comfortable work environment. The unfortunate truth is that statistics gleaned from the Public Service Employee Survey would suggest that within the CRA, the number of employees who feel that they have been harassed or bullied is far too high. This is viewed as unacceptable by both the Employer and the Union.
There are a variety of reasons for this. They are unaware of the mechanisms in place for dealing with perceived harassment or bullying that are at their disposal, as well it is likely that many members do not have a clear understanding of what constitutes harassment or bullying in the workplace.
When this type of situation occurs, there are two mechanisms available to employees; the first being an internal harassment complaint filed using the Employer’s harassment complaint system, and the second being a complaint filed under Regulation 20 of the Canada Labour Code. Both options are similar, in that they (a) seek to determine if harassment, violence or bullying took place, and (b) to identify corrective measures to ensure that the situation does not arise in the future. It is incredibly important to differentiate between the two options as the processes followed in each are vastly different.
Internal Complaint Process:
Initially the employee will complete a form outlining the nature of the incident(s) including dates, witnesses and any other information concerning what occurred. This form is sent to the Centre of Expertise (COE). The information received will be reviewed and a determination will be made if it meets the standard that the employer has established regarding harassment and bullying in the workplace. The recommendation from the COE goes to the Assistant Commissioner (AC) of the complainant’s region, who will make a final decision on how to proceed.
While the Union certainly supports a process that seeks to identify and stop behaviors which constitute harassment and bullying in the workplace, our faith in the effectiveness of the employer’s current process and its ability to deal with cases of violence and harassment in the workplace is simply not there. Upon reviewing the results from the recent Public Service Employee Survey and the number of employees who have indicated that they had been harassed or discriminated against, compared to the incredibly low number of cases that are determined to have been founded, is cause for concern. In the most recent PSES, 14% of respondents indicated that they were the victim of harassment in the workplace. This is simply unacceptable. Furthermore, 64% of those employees who indicated that they had experienced harassment, said that the harassment originated with someone who had authority over them. We simply cannot support a system in which the sole responsibility for determining the validity of harassment claims (the majority of which involve people in positions of authority within the Agency) falls within the purview of the Agency itself. Our position is that this gives rise to not only apparent, but at times real conflicts of interest, further eroding employee confidence in the system whose role it is to protect them. This is particularly troubling when looking at the PSES’s own statistics. 42% (nearly half) of respondents indicated that they are not satisfied with how matters related harassment are resolved within the Agency. This is a clear indicator that we have reached a crisis point in terms of employee’s confidence in the Agency’s ability to deal effectively with workplace harassment through their internal system. So, if both the Union and a significant percentage of our membership have lost confidence in the internal harassment process, what options do we have left?
Regulation 20
As an organization, UTE fully support the use of Regulation 20 within the Canada Labour Code. The purpose of Regulation 20 is to ensure that employer takes measures to prevent the occurrence of violence in the workplace and to ensure that employees are protected against workplace violence. Workplace violence is defined as “any action, conduct, threat or gesture of a person towards and employee in their workplace that can reasonably be expected to cause harm, injury, or illness to that employee. This includes bullying, teasing and other aggressive behavior, which are components of psychological violence. This idea is reinforced by proposed changes to the Canada Labour Code to clearly include a definition of what constitutes harassment and violence. Section 122(1) will now include the following:
Harassment and violence mean 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, including any prescribed action, conduct or comment.
The competent person will be responsible for investigating and providing the employer with a written report with conclusions and recommendations. The employer is required to provide the workplace health and safety committee or health and safety representative with a copy of the report of the “competent person”, and there are specific timeframes which must be respected. For the purposes of this section of the code, a competent person is someone who is:
- Impartial and is seen by the parties to be impartial
- Has knowledge, training and experience in issues relating to workplace violence
- Has knowledge of the relevant legislation
A huge part of what makes this option an attractive one is the lack of real or apparent conflict of interest when it comes to investigating claims of harassment or bullying in the workplace. The ability of the investigator to be impartial and to appear at all times to be impartial is of paramount importance to the investigation.
Additionally, our position is that a grievance should be filed concurrently with the Regulation 20 filing, thus ensuring employees’ right to have remedies applied. The long and short term effects of being the victim of violence or harassment in the workplace can be devastating, often resulting in time away from work and possible loss of salary. Employees should never be penalized for being a victim of such behaviors.
The Union has and will continue to believe that in all instances where this type of behavior has been alleged to have occurred, a transparent and impartial investigation must take place. Furthermore, we believe strongly that the findings of this investigation be respected, and recommendations implemented in a timely manner.
We all have the right to earn a living in a safe working environment, free from harassment and bullying. It is clear that these types of situations continue to arise, and we will continue to fight to ensure that our members are protected now, and in the future.
We recognize that the employer is looking at establishing a series of information sessions for all employees in respect to harassment in the workplace. One of the goals will be to provide employees with a better understanding of what does or does not constitute harassment. We are hopeful that during the sessions the employer will consider what might be coined as levels or seriousness of harassment. Any unacceptable behaviour cannot be tolerated, the response of the employer in the situations we recognize will be graduated based on the seriousness of the incident but to for a second suggest or dismiss a claim as not being “serious enough” is doing a great injustice towards creating a respectful and positive attitude within the CRA. While no significant evidence exists, anecdotally it could be argued that this may have a bearing on CRA statistics with respect to the number of employees indicating they feel they had been harassed in the workplace.
During these sessions the employer has committed that they will make all employees aware of the right to consider availing themselves to a Regulation 20 complaint. As a result of this agreement with the employer, UTE supports and will assist in co-facilitating these information sessions.
Nate Angus-Jackman
Communications Committee