Policies and Procedures

4245 - Procedure - Workplace Harassment And Workplace Sexual Harassment

General:

In accordance with Policy 4245, these Procedures provide a mechanism for dealing with complaints of harassment and sexual harassment occurring in the working and learning environment.

Nothing in these Procedures denies or limits access to other avenues of redress available under the law or through progressive discipline.

In such a case, this process shall cease until the parties and their respective representatives have met with the Superintendent of Education/Human Resource Services to determine which dispute resolution process will proceed and which one(s) will be held in abeyance pending completion of the chosen process.

1.0 Definitions:

      1.1 The word “employer”, under this procedure, means the Durham District School Board (DDSB) and its Senior representative, the Superintendent of Education/Human Resource Services.

      1.2 The word “employee”, under this procedure, includes all persons employed by the Board.

      1.3 “Worker who has allegedly experienced harassment”: a worker who files a complaint of harassment or sexual harassment against another person

      1.4 “Alleged harasser”: person who is accused of harassment or sexual harassment; may or may not be an employee

      1.5 “Supervisor”: a person who has charge of a workplace or authority over a worker; may be a supervisor, manager or Principal

      1.6 The words “other users” include all persons, who are neither students nor employees, while on Board premises or attending Board or school programs/functions.

      1.7 “Code” refers to the Ontario Human Rights Code.

      1.8 “Workplace Harassment”: Workplace Harassment is defined in the Occupational Health and Safety Act (OHSA) as:

      (a) engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or

          (b) workplace sexual harassment;
      1.9 “Workplace Sexual Harassment” means,
          (a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or

          (b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.

      Note: It is understood that abusive treatment of an employee by a supervisor, or abuse of authority, where it can be shown to be based on a prohibited ground under the Ontario Human Rights Code, will constitute a violation of this procedure. Harassment does not however include differences of opinion or minor disagreements between coworkers, or between supervisors and workers, nor does it include the normal exercise of supervisory responsibilities, including appraisals, counselling and discipline.

      1.10 “Working and learning environment”: The working and learning environment is any place where employees, students and other users perform work or work related duties or functions. Schools and school related activities, such as extracurricular activities and excursions, comprise this environment, as do Board offices and facilities. Conferences and training sessions also fall within the ambit of this policy.

2.0 Examples of Harassment

2.1 The following behaviours as examples of workplace harassment:

    Offensive or intimidating comments or jokes;
    Bullying or aggressive behaviour;
    Displaying or circulating offensive pictures or materials;
    Inappropriate staring;
    Workplace sexual harassment;
    Isolating or making fun of a worker because of gender identity.
    Creating a poisoned work environment: this is a specific form of harassment in which a psychological atmosphere is created which causes people to feel fearful, intimidated and/or disrespected.
    Engaging in objectionable behaviour: Objectionable Behaviour is often but not always, persistent, ongoing, vexatious conduct or communications in any form, of attitudes, beliefs or actions towards an individual in the workplace which might reasonably be known to be unwelcome. A single serious act or expression can constitute such behaviour.
    Engaging in gender-based harassment: this is one type of sexual harassment. Gender-based harassment is any behaviour that polices and reinforces traditional heterosexual gender norms. It is often used to get people to follow traditional sex stereotypes (dominant males, subservient females). It is also used as a bullying tactic, often between members of the same sex. Unlike some other forms of sexual harassment, gender-based harassment is not generally motivated by sexual interest or intent. It is more often based on hostility and is often an attempt to make the target feel unwelcome in their environment. In some cases, gender-based harassment may look the same as harassment based on sexual orientation, or homophobic bullying.

    3.0 Who May Initiate a Complaint:

      3.1 Policy and Procedure 4245 on Workplace Harassment applies to:

        All Board employees; and
        Other users which include employees of other organizations, and other persons, not related to the Board but who nevertheless work on or are invited onto Board premises.

      3.2 The rights of students to a respectful working and learning environment, free from harassment, are dealt with under other appropriate policy, legislation or regulations including but not limited to Codes of Behaviour, Safe Schools Act (now Section XIII of the Education Act), Professional Codes of Conduct, and DDSB Policies, Regulations and Procedures.
4.0 Reporting
      4.1 All employees have a right to report harassment and are entitled to have access to the dispute resolution processes. Further, these persons are encouraged to report instances of workplace harassment to the supervisor.

      It is the responsibility of the supervisor to notify the Superintendent of Education/Human Resource Services and/or the Board lawyer.

      4.2 If the alleged harasser is a supervisor, reports should be made by an individual directly to the Superintendent of Education/Human Resource Services, the Board Lawyer or the Director of Education if the allegation is against a member of the senior team.

      4.3 Every attempt should be made to resolve matters through an informal resolution. The first step is to inform the individual that his/her behaviour is unwelcome and must stop immediately.

      4.4 Supervisors must address and attempt to resolve disputes in a timely manner in order to stop the conduct.

      4.5 An external person may be retained to conduct a workplace harassment or workplace sexual harassment investigation in circumstances included, but not limited to, when the alleged harasser is a member of high-level management, senior team or trustee, or in special circumstances where an external investigation is deemed necessary to preserve procedural fairness.

      4.6 A report of an incident must include the following information:


        Name(s) of the complainant(s) and contact information;
        Name of the alleged harasser(s), position and contact information (if known);
        Names of the witness(es) (if any) or other person(s) with relevant information to provide about the incident (if any) and contact information (if known);
        Details of what happened including date(s), frequency and location(s) of the alleged incident(s);
        Any supporting documents the worker who complains of harassment may have in his/her possession that are relevant to the complaint; and
        A list of any documents a witness, another person or the alleged harasser may have in their possession that are relevant to the complaint.

        4.7 Anonymous reports will not be entertained for dispute resolution under these Procedures.

      4.8 Individuals seeking information or resources to address workplace harassment may contact their supervisor, union representative (where applicable), a joint health and safety committee member or health and safety representative, the Human Rights Legal Support Centre, the Employee Assistance Program, the Superintendent of Employee Relations and/or the Board Lawyer.
5.0 Timelines for Initiating a Complaint:
      5.1 All reports must be filed within six months of the most recent instance of alleged harassment. A report outside this time frame may be considered by consulting the principal or appropriate supervisor. Formal Complaints filed outside this time frame may be considered by consulting the Superintendent of Education/Human Resource Services.
6.0 Confidentiality:
      6.1 It is the duty of the supervisor to maintain confidentiality in the complaint process. All workers who have allegedly experienced harassment, alleged harassers and other persons involved with the complaint processes under these Procedures will ensure that all matters remain confidential. Witnesses should be informed that supervisory and managerial personnel, in obtaining a statement, will maintain said statement in confidence, subject to their ability to conduct a full and thorough investigation.

      6.2 Notwithstanding the above, procedural fairness requires that the respondent to a complaint be apprised of the nature of the complaint and by whom it has been made so that they have an opportunity to respond to the charges.

      6.3 The Board may be required to provide information obtained during an investigation to an outside agency that has the right to require information otherwise protected by the Municipal Freedom of Information and Protection of Privacy Act.

      6.4 While an investigation is on-going, the worker who has allegedly experienced harassment, the alleged harasser(s) and any witnesses will be instructed not to discuss the complaint, incident or the investigation with other workers or witnesses unless necessary to obtain advice about their rights.

7.0 Records:
      7.1 All correspondence and other documents generated under these Procedures must, subject to the Municipal Freedom of Information and Protection of Privacy Act, be marked “PRIVATE AND CONFIDENTIAL” and be stored in a locked and secure file in the Employee Relations Department.

      7.2 Records that will be stored include the following:


        A copy of the complaint or details about the incident(s);
        A record of the investigation including notes;
        A copy of witness statements, if taken;
        A copy of the investigation report;
        A copy of the results of the investigation that were provided to the worker who reported workplace harassment and the alleged harasser; and
        A copy of any corrective action taken to address the complaint or incident of workplace harassment.

      7.3 The documents associated with a workplace harassment complaint, incident and/or investigation will not be disclosed unless necessary to investigate an incident or complaint of workplace harassment, take corrective action or otherwise as may be required by law.

      7.4 For the purposes of the Occupational Health and Safety Act, records will be kept for at least one year from the conclusion of an investigation.

8.0 Misuse of the Complaint Procedures:
      8.1 If there is a determination that a complaint has been filed in bad faith, the complaint process may discontinue and disciplinary action may occur.
9.0 Reprisals:
      9.1 Reprisals against individuals because they have reported a complaint are strictly forbidden.

      9.2 Alleged reprisals shall be investigated as formal complaints and, if substantiated, are subject to the same consequences as complaints of workplace harassment.

10.0 Informal Complaint Resolution:
      10.1 When an individual feels that he or she is the object of harassment under this policy, the first step is to initiate an Informal Complaint. The purpose of the Informal Complaint Procedure is to resolve the situation to the satisfaction of the worker who has allegedly experienced harassment and to ensure that the offending behaviour, if evident, ceases.

      10.2 The worker who has allegedly experienced harassment shall inform the alleged harasser that the behaviour is unwelcome.

      10.3 The worker who has allegedly experienced harassment is encouraged to seek support from a colleague or union representative;

      10.4 The worker who has allegedly experienced harassment shall inform the supervisor. It is the responsibility of the supervisor to notify the Superintendent of Education/Human Resource Services and/or the Board lawyer.

      10.5 If the alleged harasser is a supervisor, reports should be made directly to the Superintendent of Education/Human Resource Services and/or the Board Lawyer who shall coordinate the Informal Complaint Procedure;

      10.6 The supervisor who receives the complaint shall attempt to resolve the matter through intervention or mediation;

      10.7 The worker who has allegedly experienced harassment is advised to keep a written record including the name of the alleged harasser, date, time, location, description of the offending

      behaviour, potential witnesses and who was informed. No official file shall be opened at this stage;

      10.8 If the offending behaviour does not cease or the worker who has allegedly experienced harassment is not satisfied with the result of the Informal Complaint Procedure, the worker who has allegedly experienced harassment may proceed to the Formal Complaint Procedure.

11.0 Formal Complaint Procedure:
      The Formal Complaint Procedure is conducted by the Superintendent of Education/Human Resource Services or designate who will initiate a formal investigation. The focus of the investigation may be to mediate the situation to achieve a resolution satisfactory to the worker who has allegedly experienced harassment. As circumstances merit, the investigation may result in an alternate resolution or disciplinary action.

      11.1 The worker who has allegedly experienced harassment shall submit the Formal Complaint Form (Appendix A) to the Superintendent of Education/Human Resource Services;

      11.2 Within ten working days, the Superintendent of Education/Human Resource Services will confirm receipt of the Formal Complaint, in writing to the worker who has allegedly experienced harassment and the alleged harasser;

      11.3 The Superintendent of Education/Human Resource Services may take immediate action with the non-disciplinary temporary reassignment of either the alleged harasser or the worker who has allegedly experienced harassment appropriate to the circumstances of the complaint;

      11.4 Within five working days of issuing the written confirmation of the Formal Complaint, the Superintendent of Education/Human Resource Services will initiate an investigation;

      11.5 The Superintendent of Education/Human Resource Services may designate an alternate to conduct the investigation as necessary or appropriate to the circumstances. If necessary, an Investigation Committee of two Superintendents of Education will be assigned to investigate;

      11.6 The Superintendent of Education/Human Resource Services or designate may convene a meeting with the worker who has allegedly experienced harassment and the alleged harasser in an attempt to mediate the situation, as circumstances warrant;

      11.7 The decision may include a recommendation for counselling or support for the worker who has allegedly experienced harassment or a recommendation for counselling for the alleged harasser. Disciplinary action may include the requirement of a written apology by the alleged harasser, a change in workplace, or further discipline up to and including termination, as appropriate. A copy of the report may be placed in the alleged harasser’s personnel file;

      11.8 The Superintendent of Education/Human Resource Services or designate may determine that the complaint is not a violation of the Code and make recommendations for resolution;

      11.9 If the worker who has allegedly experienced harassment is not satisfied with the outcome of the investigation, he or she has the right to proceed to the Ontario Human Rights Commission or take further or other legal action as may be appropriate;

      11.10 It is understood that, at any point in the process the Superintendent may refer the matter to outside mediation. In such cases, it is understood as follows:


        Mediation is dependent on the commitment of all parties;
        The services of a trained mediator may be utilized;
        Meetings for mediation will be arranged, where practical, in a time and place convenient for the worker who has allegedly experienced harassment, the alleged harasser and the mediator, while ensuring privacy;
        Any settlement that is reached must be mutually accepted by the parties in writing.
12.0 Investigation Process and Procedural Fairness

    12.1 An employer must ensure an investigation appropriate in the circumstances is conducted when:

      the employer or a supervisor becomes aware of an incident of workplace harassment by the worker who allegedly experienced it or another worker; or
      a complaint, whether in writing or verbal, of workplace harassment is made to the employer or supervisor.

    12.2 An investigation must be completed within 90 calendar days or less unless there are extenuating circumstances warranting a longer investigation (e.g. more than five witnesses, key witness unavailable due to illness).

    12.3 The investigator must not be the alleged harasser and must not be under the direct control of the alleged harasser. The person must be able to conduct an objective investigation. The investigator conducting the investigation on behalf of the employer must, at a minimum, complete the following seven steps to an investigation:

        12.3.1 The investigator must ensure the investigation is kept confidential and identifying information is not disclosed unless necessary to conduct the investigation or as required by law. The investigator must remind the worker who allegedly experienced workplace harassment, the alleged harasser(s) and any witnesses of any confidentiality requirements under the employer’s workplace harassment program.

        12.3.2 The investigator must thoroughly interview both the worker who has allegedly experienced workplace harassment and the alleged harasser(s), if the alleged harasser(s) is a worker of the employer. If the alleged harasser is not a worker of the employer, the investigator must make reasonable efforts to interview the alleged harasser, if the alleged harasser is known to the employer.

        12.3.3 The alleged harasser(s) must be given the opportunity to respond to the specific allegations raised by the worker. In some circumstances, the worker who has allegedly experienced workplace harassment should be given a reasonable opportunity to reply.

        12.3.4 The investigator must separately interview any relevant witnesses employed by the employer who may be identified by either the worker who has allegedly experienced workplace harassment, the alleged harasser(s) or as necessary to conduct a thorough investigation. The investigator must make reasonable efforts to interview any relevant witnesses who are not employed by the employer if there are any identified by either the worker who has allegedly experienced workplace harassment, the alleged harasser(s) or as necessary to conduct a thorough investigation.

      12.3.5 The investigator must collect and review any relevant documents.

      12.3.6 The investigator must take appropriate notes and statements during interviews with the worker who has allegedly experienced workplace harassment, the alleged harasser and any witnesses.

      12.3.7 The investigator must prepare a written report summarizing the steps taken during the investigation, the complaint, the allegations of the worker claiming harassment, the response from the alleged harasser, the evidence of any witnesses and the evidence gathered. The report must set out findings of fact and come to a conclusion about whether workplace harassment was found or not. The report must be provided to the employer or supervisor to take appropriate action.

12.4 It is understood that where allegations of harassment pertain to Human Rights Code violations the Director’s office will be prudently informed and the protocol for investigations for Human Rights Code violations may be activated by the discretion of the Director or Superintendent of Education/ Human Resource Services.

12.5 It is understood that the decision to outsource investigations rests with the Superintendent of Education/ Human Resource Services, with discretionary consultation with the Director of Education as appropriate.

13.1 Results of the investigation

13.2 The employer must ensure that the results of the investigation and any corrective action are provided to the worker who allegedly experienced workplace harassment and the alleged harasser, if they are a worker of the employer, in writing.

13.3 The results of the investigation are not the same as the investigation report. The results of the investigation are a summary of the findings of the investigation. The results must be communicated in writing within ten (10) calendar days of the investigation being concluded to the worker who has experienced the alleged harassment.

13.4 The employer must also ensure that any corrective action taken, if any (or to be taken) is communicated to the worker who allegedly experienced workplace harassment and the alleged harasser(s), if the alleged harasser is a worker of the employer. The amount of information provided about the corrective action will depend on the circumstances but must indicate what steps the employer has taken or will take to prevent a similar incident of workplace harassment if workplace harassment was found. The corrective action, if any, must be communicated in writing within ten
(10) calendar days of the investigation being concluded.


 Appendix:
 Proc 4245  - Overview of Complaint Procedure.pdfProc 4245 - Overview of Complaint Procedure.pdf

 Document Links:
 

Effective DateLegislative References
Regulation
05/18/1995
Amended/Reviewed
08/08/2006
09/20/2010
01/31/2018