[38] Bill 126 Original (PDF)

Bill 126 2004

An Act to amend the
Occupational Health and
Safety Act to protect workers
from harassment in the workplace

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

1.  The Occupational Health and Safety Act is amended by adding the following Part:

PART V.1
HARASSMENT

Definitions

49.1  In this Part,

"harassment" includes sexual harassment and harassment because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, age, record of offences, marital status, same-sex partnership status, family status or disability; ("harcèlement")

"sexual harassment" means a sexual or gender-related comment, advance, proposition, solicitation, assault or other conduct or behaviour, whether explicit, implicit, direct or indirect and whether a single occurrence or not; ("harcèlement sexuel")

"workplace-related harassment" means,

(a) harassment by a worker's employer or supervisor or by another worker, whether or not the harassment occurs at the workplace, or

(b) harassment that has the effect of interfering with the performance or safety of any worker at the workplace or that creates an intimidating, hostile or offensive work environment for any worker. ("harcèlement lié au lieu de travail")

Employer's duties

49.2  (1)  In addition to the duties imposed under sections 25 and 26, an employer shall,

(a) ensure that every worker is protected from workplace-related harassment; and

(b) prepare, as part of the occupational health and safety policy required under clause 25 (2) (j), guidelines for eliminating and dealing with incidents of workplace-related harassment, including such guidelines as may be prescribed; and

(c) provide for regular harassment prevention training for its workers, including those who exercise managerial functions, and require workers to attend the training provided.

Duties if harassment occurs

(2)  If workplace-related harassment occurs, the employer shall,

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

(b) ensure that adequate steps are taken to remedy the effects of the harassment; and

(c) compensate the worker for any absences from the workplace related to the harassment.

Provide resources

(3)  The employer shall provide sufficient resources to carry out the actions described in subsection (2).

Right to refuse to work

49.3  (1)  If workplace-related harassment occurs, a worker may refuse to work if,

(a) the harassment interferes with the worker's ability to perform at work;

(b) the worker believes that the harassment will continue; or

(c) the worker's health or safety is jeopardized by continuing to work at the workplace.

Notice to inspector

(2)  A worker who refuses to work under subsection (1) shall promptly notify an inspector and shall set out in the notice the reasons for the refusal.

Copy to employer or supervisor

(3)  The worker shall send a copy of the notice referred to in subsection (2) to the worker's employer or supervisor.

Investigation

(4)  The inspector shall immediately investigate a report made under subsection (2) to determine if workplace-related harassment has occurred.

Same

(5)  Any of the following persons who are present at the workplace may accompany the inspector during the investigation:

1. A committee member who represents workers.

2. A health and safety representative.

3. A worker who, because of knowledge, experience and training, is selected by a trade union that represents the worker who sent the notice or, if there is no trade union, is selected by the workers to represent them.

Worker to remain off-site

(6)  Pending the investigation and determination of the inspector, a worker who refuses to work under this section shall not be required to return to the workplace unless the following conditions are satisfied:

1. The employer makes reasonable alternative work arrangements for the worker to ensure the worker will have no contact with the person who allegedly is responsible for the harassment.

2. The alternative work arrangements are approved by the worker and, if one or more persons described in paragraphs 1 to 3 of subsection (5) are present in the workplace, by one of those persons.

Entitlement to be paid

(7)  Until the matter is finally disposed of, a worker who does not return to the workplace under subsection (6) is deemed to be at work during the hours the worker would normally have worked and the worker's employer shall pay the worker for those hours at the regular or premium rate, whichever would otherwise apply.

Inspector's order

49.4  (1)  If an inspector determines that workplace-related harassment has occurred, the inspector shall order the employer to make such arrangements at the workplace as the inspector determines to be necessary to prevent further occurrences.

Same

(2)  An order under subsection (1) must be in writing and may require the employer to comply forthwith or within a period of time set out in the order.

Application

(3)  Subsections 57 (4), (5), (9), (10) and (11) and sections 59 and 61 apply with necessary modification to an order made under subsection (1).

Worker's rights

49.5  Despite the provisions of any other Act, nothing in this Part precludes any rights, protections and remedies that a worker may have under another Act in respect of harassment.

Commencement

2.  This Act comes into force on the day it receives Royal Assent.

Short title

3.  The short title of this Act is the Occupational Health and Safety Amendment Act (Harassment), 2004.

EXPLANATORY NOTE

The Bill amends the Occupational Health and Safety Act to require employers to protect workers from harassment in the workplace, to give workers the right to refuse to work in certain circumstances after harassment has occurred, to require an investigation of allegations of workplace-related harassment and to require employers to take steps to prevent further occurrences of workplace-related harassment.