Bill C-348

1st Session, 41st Parliament,

60 Elizabeth II, 2011

house of commons of canada

BILL C-348

An Act to prevent psychological harassment in the workplace and to make consequential amendments to another Act

Whereas the Canadian Human Rights Act prohibits discrimination on the grounds of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for which a pardon has been granted;

Whereas, in addition to providing this protection, the Government of Canada affirms that, in every workplace under its authority, every employee is entitled to employment free of psychological harassment;

Whereas the Government of Canada, being an employer concerned about the well-being of its employees, has a duty to take concrete action to prevent any form of psychological harassment in the workplace;

Whereas every case of psychological harassment in the workplace must be disclosed, investigated and dealt with through remedial or disciplinary action, including termination of employment;

And whereas a person subjected to psychological harassment must have the right to exercise recourse and obtain redress, and a person who discloses such harassment must be protected against any threat or retaliation;

Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

1. This Act may be cited as the Workplace Psychological Harassment Prevention Act.

INTERPRETATION

2. The following definitions apply in this Act.

“Commissioner” means the commissioner of the Public Service Commission designated as the Commissioner for the Prevention of Psycholog- ical Harassment in the Workplace under section 5.

“Committee” means the Psychological Harassment Complaints Committee established by section 8.

“disciplinary action” means any negative or punitive action in respect of an employee or the employee’s conditions of employment, and includes

(a) a financial penalty; and

(b) suspension or termination of employ- ment.

“employee” has the same meaning as in section 2 of the Public Service Employment Act.

“law in force in Canada” means any Act of Parliament or of the legislature of a province and any regulations made under such an Act.

“psychological harassment” means

(a) any vexatious behaviour in the form of hostile, inappropriate and unwanted conduct, verbal comments, actions or gestures that affects an employee’s dignity or psychological or physical integrity and that results in a harmful workplace for the employee, and

(b) any abuse of authority, including intimidation, threats, blackmail or coercion, that occurs when a person improperly uses the power or authority inherent in the person’s position to endanger an employee’s job, undermine the employee’s job performance, threaten the economic livelihood of the employee or interfere in any other way with the career of the employee,

and, for greater certainty, a single incident of such behaviour or abuse of authority that has a lasting and harmful effect on an employee also constitutes psychological harassment.

“public service” means those portions of the federal public administration subject to the Public Service Labour Relations Act.

RIGHTS AND RESPONSIBILITIES

3. (1) Every employee is entitled to employment free of psychological harassment.

(2) Before filing a complaint with the Commissioner, an employee who is subjected to psychological harassment must ensure that the person responsible for the harassment is notified orally or in writing by the employee or by another person acting on behalf of the employee that the harassment is taking place and that the person responsible must put an end to it.

(3) The employer must ensure that no employee is subjected to psychological harassment and for that purpose must, after consulting the employees or the employees’ representatives, establish and distribute a policy on psychological harassment that includes

(a) a definition of psychological harassment that is substantially the same as the definition in the Canada Labour Code;

(b) a statement to the effect that every employee is entitled to employment free of psychological harassment;

(c) a statement to the effect that the employer will make every reasonable effort to ensure that no employee is subjected to psychological harassment;

(d) a statement setting out the disciplinary action that will be taken against any employee who subjects any other employee to psychological harassment;

(e) a statement explaining how complaints of psychological harassment are to be brought to the attention of the employer;

(f) a statement to the effect that the complain- ant’s identity and the circumstances of the complaint will not be disclosed unless the disclosure is necessary for the purpose of investigating the complaint or taking disciplinary action in relation to the complaint; and

(g) information on the employees’ right to file a complaint under the Canadian Human Rights Act.

(4) Within five days after the behaviour referred to in subsection (2) is brought to the employer’s attention, the employer must take action to put an end to it and must, at the request of the employee who is subjected to the psychological harassment, grant the employee leave with pay until the complaint filed under section 10 is dealt with.

(5) Any supervisor or manager — and any other person — who, having authority over an employee, contravenes section 20 is personally liable for any damages that may be awarded to the employee as a result of a civil action or an administrative proceeding.

(6) Any supervisor or manager — and any other person — who, having authority over an employee, contravenes section 20 is liable to criminal prosecution and to a fine not exceeding $10,000, as well as to disciplinary action, including termination of employment.

(7) The provisions of subsections (1) to (6), 10(2), 16(2) and 17(3) and (4), with any necessary modifications, are deemed to be an integral part of every collective agreement, and an employee bound by such an agreement must exercise the recourses provided for in the agreement insofar as any such recourse is available to the employee under the agreement.

(8) At any time, an employee who is subjected to psychological harassment may request the appointment of a mediator to deal with the matter or matters in dispute.

(9) The provisions referred to in subsection (7) are deemed to be part of the conditions of employment of every employee appointed under the Public Service Employment Act who is not bound by a collective agreement, and if such an employee is subjected to psychological harassment, the employee must exercise any recourse before the Public Service Commission.

AWARENESS OF PSYCHOLOGICAL HARASSMENT

4. The employer must disseminate information relating to this Act and to its enforcement and must take any other action that the employer considers appropriate to foster, in every workplace of the public service, ethical practices and an environment conducive to the disclosure of psychological harassment.

COMMISSIONER

5. (1) The Governor in Council must designate one of the commissioners of the Public Service Commission as the Commissioner for the Prevention of Psychological Harassment in the Workplace for the purposes of this Act.

(2) The duties and functions of the Commissioner under this Act are part of the duties and functions of the Public Service Commission for the purposes of the Public Service Employment Act.

(3) The powers conferred on the Commissioner by the Public Service Employment Act for the purposes of that Act may be exercised for the purposes of this Act.

6. The Commissioner or any person acting on behalf or under the direction of the Commissioner, including a member of the Committee, is not a competent witness in respect of any matter that comes to their knowledge during the exercise or performance of any power, duty or function under this Act in any proceeding other than

(a) a prosecution for an offence under section 22; or

(b) a prosecution for an offence under section 132 of the Criminal Code (perjury) in respect of a statement made under this Act.

7. (1) No criminal or civil proceedings lie against the Commissioner or against any person acting on behalf or under the direction of the Commissioner, including a member of the Committee, for anything done, reported or said in good faith during the exercise or performance or purported exercise or performance of any power, duty or function of the Commissioner under this Act.

(2) For the purposes of any law relating to libel or slander,

(a) anything said, any information supplied or any document or thing produced in good faith and on reasonable grounds in the course of an investigation by or on behalf of the Commissioner under this Act is privileged; and

(b) any report made in good faith by the Commissioner under this Act and any fair and accurate account of the report made in good faith in the press is privileged.

PSYCHOLOGICAL HARASSMENT COMPLAINTS COMMITTEE

8. (1) There is established a committee to be known as the Psychological Harassment Complaints Committee, consisting of not more than five members to be appointed by the Commissioner to hold office during pleasure for a term not exceeding three years, which term may be renewed for one or more further terms.

(2) The Committee consists of

(a) three persons who are not employees of the public service but who possess experience or professional training in staff relations and psychological harassment in the workplace;

(b) a representative of the employee organization to which the employee who is subjected to the psychological harassment belongs or, if the employee does not belong to an employee organization, a person of the employee’s choosing; and

(c) a representative of the employer.

(3) The Commissioner must designate one of the members of the Committee as chairperson of the Committee.

(4) In the performance of its duties and functions, the Committee has all the powers conferred on the Commissioner by subsection 5(3).

(5) The Committee must

(a) review written complaints relating to the behaviour or actions of any employee to which this Act applies;

(b) investigate complaints filed under this Act;

(c) report the findings of its investigations to the Commissioner;

(d) submit to the Commissioner an annual report of its activities;

(e) provide advice;

(f) make general recommendations on issues relating to the prevention of psychological harassment in the workplace; and

(g) deal with any other matter that may be prescribed by regulation.

9. A decision of a majority of the members of the Committee is a decision of the Committee.

RECOURSE OF EMPLOYEE

10. (1) An employee who believes that he or she has been subjected to psychological harassment may file a complaint in writing with the Commissioner. Such a complaint may also be filed by a non-profit organization dedicated to the defence of employees’ rights on behalf of one or more employees who consent in writing to such filing.

(2) Every complaint of psychological harassment must be filed within 90 days after the most recent manifestation of such behaviour.

(3) An employee who believes that he or she has been subjected to psychological harassment may request authorization from the employer to perform his or her duties at a place other than the workplace of the person who is the subject of the complaint filed under subsection (1).

11. (1) An employee against whom disciplinary action is taken in contravention of section 20 may exercise any recourse available in law, including a grievance under an Act of Parliament or under any other law in force in Canada.

(2) An employee against whom disciplinary action is taken in contravention of section 20 may exercise a recourse referred to in sub-section (1) even if a prosecution based on the same facts as those alleged in the recourse has been or might be instituted under section 22.

(3) An employee against whom disciplinary action is taken in contravention of section 20 may elect to have the presumption of subsection 20(2) apply in a recourse exercised under subsection (1).

DISCLOSURE

12. (1) Every employee must disclose to the employee’s supervisor or to a public body any behaviour known to the employee that affects that employee or any other employee and that, in the opinion of a reasonable person, would constitute a contravention of this Act.

(2) An employee who believes on reasonable grounds that a person who is employed in the public service or who is in a workplace of the public service has engaged or is about to engage in an act of psychological harassment may

(a) disclose the matter in writing to the Commissioner; and

(b) request that the employee’s own identity not be revealed in connection with the disclosure.

(3) The disclosure must specify

(a) the identity of the employee making the disclosure, evidenced by the employee’s signature;

(b) the identity of the person referred to in the disclosure; and

(c) the grounds for the employee’s belief that the person has engaged or is about to engage in an act of psychological harassment, and the details known to the employee.

(4) A disclosure made in good faith on reasonable grounds to the Commissioner under subsection (2) does not constitute a violation of the oath of office or oath of secrecy taken and subscribed by the employee and, subject to subsection (5), does not constitute neglect of duty.

(5) In making a disclosure under subsection (2), it is prohibited for an employee to contravene any law in force in Canada or any rule of law that protects communication subject to solicitor-client privilege, unless the employee is motivated by a reasonable concern for public health and safety.

13. Subject to any legal obligation of the Commissioner under this Act or any other law in force in Canada, it is prohibited for the Commissioner to reveal the identity of the employee who has made a disclosure under subsection 12(2) and to whom the Commissioner has given, subject to the other provisions of this Act, assurance of anonymity.

14. On receipt of a disclosure under subsection 12(2), the Commissioner must review it, and may request any additional information from the employee who made the disclosure and investigate the matter in any other manner that the Commissioner considers necessary.

15. (1) The Commissioner must reject a disclosure made under subsection 12(2) and close the matter if the Commissioner determines, after a preliminary review, that the disclosure

(a) is vexatious or has a trivial or frivolous purpose;

(b) does not constitute an allegation of psychological harassment or provide sufficient details relating to the psychological harassment;

(c) contravenes subsection 12(5); or

(d) has not been made in good faith or on reasonable grounds.

(2) If a disclosure made by an employee under subsection 12(2) includes any statement that the employee knows to be false or misleading at the time the employee makes it, the Commissioner may conclude that the disclosure has not been made in good faith.

(3) The Commissioner is not required to conclude that a disclosure has not been made in good faith by reason only that it is based on a mistake of fact.

(4) If the Commissioner makes a determination under subsection (1), the Commissioner must, within 30 days after making the determination, send written notice of it to the employee who made the disclosure.

(5) If the Commissioner makes a determination under paragraph (1)(c) or (d), the Commissioner may notify the person referred to in the disclosure.

16. (1) The Commissioner must accept a disclosure made under subsection 12(2) if the Commissioner determines that the disclosure

(a) is not vexatious and does not have a trivial or frivolous purpose;

(b) constitutes an allegation of psychological harassment and provides sufficient details relating to the psychological harassment;

(c) does not contravene subsection 12(5); and

(d) has been made in good faith and on reasonable grounds.

(2) If the Commissioner makes a determination under subsection (1), the Commissioner must immediately send written notice of it to the employee who made the disclosure.

INVESTIGATION AND REPORT

17. (1) The Commissioner must investigate a disclosure accepted under section 16 and, subject to subsection (2), must prepare a written report of the Commissioner’s findings and recommendations.

(2) If the Commissioner finds that an employee has been subjected to psychological harassment and that the employer has failed to meet the requirements of subsection 3(3) or (4), the Commissioner may make any decision that the Commissioner considers fair and reasonable having regard to all the circumstances of the matter, including

(a) ordering the employer to reinstate the employee and, if the employee so desires, ensure that the employee can safely occupy the same position;

(b) ordering the employer to pay the employee compensation not exceeding an amount equivalent to the salary lost;

(c) ordering the employer to make every reasonable effort to put an end to the harassment;

(d) ordering the employer to pay the employee exemplary and punitive damages and any legal and other expenses incurred by the employee under this Act;

(e) ordering the employer to pay the employee compensation for loss of employment;

(f) ordering the employer to pay for any training program required for the purposes of career transition;

(g) ordering the employer to pay for any psychological or medical support required by the employee; and

(h) ordering the employer to modify the employee’s disciplinary record.

(3) Paragraph (2)(b) does not apply in respect of a period during which an employee is the victim of an employment injury, within the meaning of a provincial law respecting industrial accidents, that results from psy- chological harassment.

(4) If the Commissioner makes a decision under subsection (2), the Commissioner must, within 30 days after making the decision, send written notice of it to the employee who made the disclosure.

REPORT TO PARLIAMENT

18. (1) The Public Service Commission must, within five months after the end of each fiscal year, transmit to the minister designated by the Governor in Council for the purposes of this section an annual report of the statement by the Commissioner of the activities carried out under this Act, including

(a) a description of the Commissioner’s activities;

(b) the number of disclosures in every department or agency of the Government of Canada that have been received under section 12;

(c) the number of disclosures in every department or agency of the Government of Canada that have been rejected under section 15;

(d) the number of disclosures in every department or agency of the Government of Canada that have been accepted under section 16; and

(e) the number of disclosures in every department or agency of the Government of Canada that have been accepted and are still being investigated under subsection 17(1).

(2) The Minister designated by the Governor in Council under subsection (1) must cause the report referred to in that subsection to be laid before Parliament within 15 days after the receipt by the minister thereof or, if Parliament is not then sitting, on any of the first 15 days next thereafter that either House of Parliament is sitting.

(3) The Public Service Commission may include in its annual report a review of the provisions and operation of this Act and any recommendations relating to this Act.

PROHIBITIONS

19. (1) It is prohibited to provide false information to the Commissioner or to any person acting on behalf or under the direction of the Commissioner, including a member of the Committee, during the exercise or performance of any power, duty or function of the Commissioner under this Act.

(2) It is prohibited for an employee to make a disclosure under subsection 12(2) in bad faith.

20. (1) It is prohibited for a person to take any discipli­nary action against an employee by reason only that

(a) the employee, acting in good faith and on reasonable grounds, has disclosed or stated an intention of disclosing to the Commissioner that a person who is employed in the public service or who is in a workplace of the public service has engaged in an act of psychological harassment;

(b) the employee, acting in good faith and on reasonable grounds, has stated an intention of doing anything that is required to be done to ensure compliance with this Act; or

(c) the person believes that the employee will do anything referred to in paragraph (a) or (b).

(2) Every person who takes disciplinary action against an employee in contravention of this section within two years after the employee has made a disclosure under subsection 12(2) is deemed, in the absence of any evidence to the contrary established on a balance of probabilities, to have taken the disciplinary action because the employee made the disclosure.

21. (1) Except as authorized by this Act or by any other law in force in Canada, it is prohibited to communicate to any other person the fact or nature of a disclosure made under subsection 12(2) in a manner that reveals the identity of the employee who made the disclosure.

(2) Subsection (1) does not apply if the disclosure was made in contravention of subsection 12(5) or was not made in good faith or on reasonable grounds.

OFFENCES

22. Every person who contravenes subsection 12(5), section 19 or subsection 20(1) or 21(1) is guilty of an offence and liable on summary conviction to a fine not exceeding $10,000.

REGULATIONS

23. The Governor in Council may make regulations

(a) establishing criteria respecting the qualifications and training of the Commissioner, having regard in particular to the person’s experience and professional training in staff relations and psychological harassment in the workplace;

(b) establishing the rules to be followed by the Commissioner and any person acting on behalf or under the direction of the Commissioner, including a member of the Committee, in the handling of complaints and investigations;

(c) providing for the establishment of an optional mediation process for dealing with the matter or matters in dispute;

(d) prescribing the conditions for paying compensation, damages, and legal and other expenses under paragraphs 17(2)(b), (d) and (e); and

(e) generally for carrying out the purposes and provisions of this Act.

24. (1) Any grievance under the Public Service Labour Relations Act that has not been finally dealt with on the coming into force of this Act must be dealt with and disposed of in accordance with this Act.

(2) Any proceeding that has not been finally dealt with on the coming into force of this Act must be dealt with and disposed of in accordance with this Act.

CONSEQUENTIAL AMENDMENTS

Canada Labour Code

25. The heading before section 247.1 of the Canada Labour Code is replaced by the following:

26. Sections 247.2 and 247.3 of the Act are replaced by the following:

247.2 Every employee is entitled to employment free of sexual or psychological harassment.

247.3 Every employer shall make every reasonable effort to ensure that no employee is subjected to sexual or psychological harassment.

27. (1) Subsection 247.4(1) of the Act is replaced by the following:

247.4 (1) Every employer shall, after consulting with the employees or their representatives, if any, issue a policy statement concerning sexual or psychological harassment.

(2) Paragraphs 247.4(2)(a) and (b) of the Act are replaced by the following:

(a) a definition of sexual harassment that is substantially the same as the definition in section 247.1 and a definition of psychological harassment that is substantially the same as the definition in 247.11;

(b) a statement to the effect that every employee is entitled to employment free of sexual or psychological harassment;

(3) Paragraphs 247.4(2)(d) and (e) of the Act are replaced by the following:

(d) a statement to the effect that the employer will take such disciplinary measures as the employer deems appropriate against any person under the employer’s direction who subjects any employee to sexual or psychological harassment;

(e) a statement explaining how complaints of sexual or psychological harassment may be brought to the attention of the employer;

(4) Paragraph 247.4(2)(g) of the Act is replaced by the following:

(g) a statement informing employees of the discriminatory practices provisions of the Canadian Human Rights Act that pertain to rights of persons to seek redress under that Act in respect of sexual or psychological harassment.

28. The portion of subsection 256(1) of the Act after paragraph (c) is replaced by the following:

is guilty of an offence and liable on summary conviction to a fine not exceeding ten thousand dollars.

29. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.