Bill C-65: Legal requirements for healthier work environments

1. Bill C-65: Legal requirements for healthier work environments A presentation by Nicole Richmond and Ken Ogima to Nokiiwin Tribal Council Our Respectful Community An Inside Job - Solutions From Within

5. What’s at stake • Why does workplace wellness matter? • Literature on workplace bullying tells us that supervisors and managers perpetuate much of this behaviour on subordinate staff members • Root of institutional violence is the absence of respect in the workplace • Leaders set the tone. Leaders must promote a culture of respect through their words and behaviours.

6. What’s at stake • Jobs matter. • For First Nation people, we see these institutions as agents of social change. This is how we help our people, we give back. • We define ourselves in relation to our work.

8. The stress leave epidemic • 'Epidemic of stress' blamed for 3,750 teachers on long-term sick leave. Teaching unions are warning of an “epidemic of stress” as research revealed that 3,750 teachers were signed off on longterm sick leave last year because of pressure of work, anxiety and mental illness. Guardian, Jan 11, 2018 • It's clear our environment is a leading driver of this epidemic. ... At work, intense competition and disruptive innovation are forcing organizations to navigate complex terrain. And these pressures are increasingly felt by employees… In Canada, 58 per cent of employees said chronic stress negatively affected their productivity, while nearly half considered leaving their jobs, according to a 2015 Morneau Shepell survey. Millennials were twice as likely to take stress leave as other age groups. Globe and Mail, October 7, 2017

9. What does Nicole see in her practice? • Employees having no one to express concerns to • Bosses ignoring employees, not responding to emails • Not taking employee complaints seriously • Employees being punished for raising concerns • When employees try to enforce policies, advocate for change • When employees advocate for their subordinates

10. What does Nicole see in her practice (cntd)? • Toxic work environment • Gossip, talking behind people’s backs, Not valuing employees: “She’s easy to replace” • Employees being ignored, stiffed out, duties taken away from them • Employers assigning duties to employees who they are more friendly with • Unilaterally changing the terms of employment

11. What does Ken see in his role? • Workplace history – growing up military • Re-learning how to interact in a healthy environment • Lessons for personal growth

12. Lateral Violence • Lateral violence is a form of bullying that takes place peer to peer. • Lateral violence includes gossiping, rumours, sabotaging and back-stabbing. • Lateral Violence is a destructive force that creates unhappy and unhealthy workplaces. • The impacts of Lateral Violence include lack of trust, lack of safety, high absenteeism and turnover – and reduced quality of service.

13. On the ground … lateral violence at the band office • Administration • Chief and Council • Membership

14. Queen Bee Syndrome • “Queen Bees are adult versions of the mean girls from school — but now they have grown up and are more calculating,” Cecilia Harvey, a London-based consultant and author of the study, wrote. “These socially aggressive behaviours include gossiping, social exclusion, social isolation, social alienation, talking about someone, and stealing friends or romantic partners.” • 70 % of women had been the victim of workplace bullying or covert undermining by a female boss, • 33 % had experienced a female colleague on the same level or below being unhelpful, holding them back or undermining them.

15. Queen Bee Syndrome • “Queen Bee mischief manifests in ways that can have lasting negative effects on individual careers and entire organisations,” • Queen Bee behaviour has a negative impact on organizational performance and contributes to reduced productivity, reduced employee satisfaction, grievances and lawsuits, and lower profitability. • Nearly 75 % of respondents said they believed Queen Bee behaviour stems from insecurity, the feeling that being aggressive is the only way to be taken seriously or the need to be the only “top” woman.

16. Recovering from colonialism • Lateral violence and the flow of power • Conditions for healing • Managers create structures for workers to tap into their own source of energy

17. The role of the law

18. Common law – judge made law • Management has two positive duties: first, to members of the workforce who are entitled to protection from offensive conduct, and second, to the corporation, to protect it from civil suits at the hands of individual complainants. • Bannister v. General Motors of Canada, 1998 • It is well established that an employer has a positive duty to ensure the safety of the workplace and to satisfy itself that each employee is capable of working safely. In this regard, an employer is expected to respond when an employee is either unwilling or unable to work safely. • Re Gould Mfg of Canada and Allied Workers Union, 1978

19. Common law – judge made law • There are existing employer duties at common law (judge made law) • The employer is obliged to keep the workplace as safe as possible from harm from any source of injuring any of its workers. The employer must guard its workers from dangers of which it knows, or ought to have known. • Ennisteel, a div of Leroux Steel v. United Steelworkers of America Local 6444 (2000) • The employer has an obligation, moral and statutory, to maintain a safe workplace and that obligation includes a necessity to encourage attitudes of safety in employees. • Canada Packers Limited and Union of Food and Commercial Workers International Union (2000)

20. Importance of legislation • Legislation is designed to guide people’s behaviour • Sets parameters of what is acceptable • Provides remedies for what is unacceptable • Federally regulated employers are governed by the Canada Labour Code • Review existing health and safety legislation

21. Canada Labour Code, s. 124 • Every employer shall ensure that the health and safety at work of every person employed by the employer is protected.

22. Canada Labour Code s. 125(1) • Every employer shall … • (y) Ensure the activities of every person granted access to the work place do not endanger the health and safety of employees • (z.14) take all reasonable care to ensure that all of the persons granted access to the work place, other than the employer’s employees, are informed of every known or foreseeable health or safety hazard to which they are likely to be exposed in the work place • (z.16) take the prescribed steps to prevent and protect against violence in the work place;

23. Canada Labour Code s. 126 • Every employee shall … • (c) take all reasonable and necessary precautions to ensure the health and safety of the employee, the other employees and any person likely to be affected by the employee’s acts or omissions • (d) comply with all instructions from the employer concerning the health and safety of employees • (e) cooperate with any person carrying out a duty imposed under this Part

24. Bill C-65 • Bill C-65 is built on the pillars of prevention, response and support. • It will ensure that employers take steps to protect employees from these unacceptable behaviours, to respond to them when they occur and to offer support to those affected.

25. Bill C-65 Purpose • The purpose of this Part is to prevent accidents, occurrences of harassment and violence and physical or psychological injuries and illnesses arising out of, linked with or occurring in the course of employment to which this Part applies. • Intended to “strengthen the existing framework for the prevention of harassment and violence, including sexual harassment and sexual violence, in the workplace”

26. Bill C-65 in a nutshell • Regarding all occurrences of harassment or violence, there is an express duty on employers to • Investigate, Record, Report • Take prescribed measures to prevent and protect against harassment and violence • Respond to occurrences of harassment and violence in the workplace • Offer support to employees affected by harassment and violence in the workplace

27. Bill C-65 in a nutshell • Requires employers, in their workplace harassment and violence prevention policies, to designate a person to receive complaints of harassment and violence. • Avoids having to report complaints to their supervisors • Upon receiving a complaint, the supervisor or designated person must attempt to resolve the complaint with the employee promptly.   • If complaint is not resolved, it does not go to an internal committee • Intended to protect the parties’ privacy and prevent undue influence.

28. Bill C-65 in a nutshell • Government has the power to make regulations respecting an employers’ obligations to investigate, record, and report complaints. • If not resolved internally, complaints of violence or harassment fall to the Minister, who is obligated to investigate the complaint • unless the Minister thinks the complaint has been adequately dealt with or the matter is trivial, frivolous, or vexatious.

29. Harassment and Violence defined • 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

31. What is workplace violence • It is any act in which a person is abused, threatened, intimidated or assaulted in his or her employment (Canadian Centre for Occupational Health and Safety) • Threatening behaviour – such as shaking fists, destroying property or throwing objects. • Verbal or written threats – any expression of an intent to inflict harm. • Verbal abuse – swearing, insults or condescending language. • Physical attacks – hitting, shoving, pushing or kicking.

32. What is workplace harassment • Harassment – any behaviour that demeans, embarrasses, humiliates, annoys, alarms or verbally abuses a person and that is known or would be expected to be unwelcome. This includes words, gestures, intimidation, bullying, or other inappropriate activities. • Each case is unique and should be examined in its own context and according to the surrounding circumstances as a whole. The impact on you, the complainant, should be significant as harassment is serious.

33. Be responsive • Take prescribed measures to prevent and protect against harassment and violence in the workplace • Respond to occurrences of harassment and violence in the workplace • Offer support to employees affected and violence in the workplace

34. Where can violence and harassment occur? • On travel status • At a conference where the attendance is sponsored by the employer • At employer sponsored training activities/sessions • At employer sponsored events, including social events

35. Prevention • Information • Training • Designating a complaint person

36. Prevention: Information • Employer must make readily available to employees • A copy of the law and regulations • A statement of the employer’s general policy concerning health and safety at work of employees • Any other information related to health and safety that is prescribed or may be specified by the Minister

37. Poll • Do you know what your employer’s general policy is concerning health and safety at work of employees?

38. What does health and safety look like? • From an Anishnabek perspective? • Seven grandfather teachings • From a G’minoomadozimin perspective? • Consider your words and how they could affect others • This is a safe, welcoming workplace where we treat others with respect, dignity and equality • From a lateral kindness perspective? • From a restorative practices perspective?

40. Employer’s general policy concerning health and safety at work of employees • The most important component of any workplace violence prevention program is management commitment. • Management commitment is best communicated in a written policy. • The policy should: • Be developed by management and employee representatives. • Apply to management, employee's, clients, independent contractors and anyone who has a relationship with your company. • Define what you mean by workplace violence in precise, concrete language. • Provide clear examples of unacceptable behaviour and working conditions.

41. Employer commitment to health and safety • State in clear terms your organization's view toward workplace violence and its commitment to the prevention of workplace violence. • State consequences of making threats or committing violent acts. • Outline the process by which preventive measures will be developed. • Encourage reporting of all incidents of violence. • Outline the confidential process by which employees can report incidents and to whom. • Assure no reprisals will be made against reporting employees. • Outline the procedures for investigating and resolving complaints.

42. Lessons from Restorative Practices • The fundamental hypothesis of restorative practices embodies fair process by asserting that "people are happier, more cooperative and productive, and more likely to make positive changes in behavior when those in authority do things with them, rather than to them or for them.“ • Can you collaboratively make a policy? • Bring people on board that way? • Easier to enforce

43. Prevention: Training • Ensure that employees, including those who have supervisory or managerial responsibilities, receive training in the prevention of harassment and violence in the workplace • Ensure that employees are informed of their rights and obligations in relation to harassment and violence in the workplace

44. Really good training … • Does anyone know who is doing really good training on this? • Best practices to share • How to move from theory to practice • Nokiiwin will be developing a toolkit with resources

45. Prevention: designating a person to receive complaints • Ensure that the person designated by the employer to receive complaints related to occurrences of harassment and violence has knowledge, training, and experience in issues relating to harassment and violence and has knowledge of relevant legislation • Try to resolve complaint between themselves as soon as possible • Ideas or suggestions? • What happens on the ground – what do you do to resolve?

46. Best practices for responding to complaints • Why don’t complainants come forward? • Investigate - Report – Respond • Investigators should be independent

47. Best practices for responding to complaints • Management structure must respond to complaints and commit to healing within the workplace

48. Contact Nicole Richmond Weiler Maloney Nelson, Thunder Bay nrichmond@wmnlaw.com Ken Ogima Fort William First Nation kenogima@fwfn.com