Respectful Conduct Procedure

Purpose statement

The Town of Oakville (Town) is committed to maintaining a healthy, safe and respectful workplace for all employees that is free from workplace harassment and discrimination. This procedure is designed to resolve complaints and disputes in a manner that is respectful and maintains the dignity of all individuals. 

Pursuant to the Ontario Human Rights Code and the Occupational Health and Safety Act, the Town will not tolerate, ignore or condone workplace harassment and discrimination. All employees are responsible for respecting the dignity and human rights of others and the well-being of the community we serve. 
 The principles which guide the Town in promoting a respectful workplace are as follows: 

1. The Town recognizes that the most effective way to deal with harassment and discrimination is through action, including education, awareness, and, if required, investigation. 
2. The Town promotes and supports a diverse, equitable, and inclusive work environment. 
3. The Town will take all reasonable steps to provide a healthy and safe workplace, free from any form of workplace harassment and discrimination. 
4. The Town is committed to a work environment that respects the dignity, self-worth and human rights of every person and provides opportunities for each person to contribute to the Town. 
5. Employees and others shall report workplace harassment and discrimination as per the Complaint Process outlined below. 
6. Employees who engage in workplace harassment and/or discrimination will be subject to corrective action and may be disciplined up to and including termination of employment. 

Scope

This procedure applies to all Town employees (including but not limited to full-time, part-time, students, volunteers, seasonal, temporary and interns), any individual representing or acting on behalf of the Town in any manner (i.e. contractors, consultants) as well as every person accessing Town property, services, events and programs. 

Procedure

Complaint process

Informal resolution

In all cases, supervisors and managers have a duty to respond to and take action to resolve any alleged or suspected workplace harassment or discrimination. Depending on the situation, informal resolution is a process that provides an opportunity for parties to resolve a dispute in a mutually respectful manner that is encouraged prior to filing a formal complaint.

Alterative resolution processes such as mediation, facilitation, or workplace restoration may be undertaken with the consent of the parties to the complaint and with the agreement of the Town. The early resolution of concerns, in some cases, can preserve or repair workplace relationships and improve the work environment for all affected individuals. 

Formal complaint 

Step 1 – Filing of complaint: 

Formal complaints must be made in writing to the Director of Human Resources. Employees are encouraged to use the Respectful Conduct Reporting Form. A complaint must include the following information: 

• Name and department/location of the person making the complainant. 
• Contact information for the person making the complaint. 
• Name and department/location of the respondent(s). 
• The nature of the complaint. 
• When the incident(s) occurred including the date and location. 
• A description of the complaint, detailing the circumstances surrounding the incident(s). 
• Names of any potential witnesses to the incident(s) in the complaint. 

All formal complaints must be forwarded to the Director of Human Resources. If the Director of Human Resources is involved in the alleged workplace harassment or discrimination, the complaint should be forwarded to the Commissioner of Corporate Services who will assume responsibility for the process. 

While it would normally be the individual who has allegedly been the subject of workplace harassment and discrimination filing the complaint, a witness may submit a complaint on the individual’s behalf, even without their consent. 

An employer-initiated investigation may also be triggered based upon conduct observed by the employer or upon information received. In such circumstances, the complaint must have a minimum level of substance. Bald or generic allegations may be insufficient and can limit the Town’s ability to conduct a thorough investigation; complaints should include specific details such as who was involved, what occurred, where it happened, and when. 

Step 2 – Initial determination: 

Upon receipt, the Director of Human Resources or designate will review the written complaint and determine whether the alleged conduct would, if proven, violate the Town’s Respectful Conduct Policy and Respectful Conduct Procedure and/or amount to workplace harassment or discrimination as defined by the Occupational Health and Safety Act and/or the Ontario Human Rights Code. As part of this process the Director of Human Resources or designate may contact the complainant for additional information. 

The Director of Human Resources or designate will acknowledge receipt of the complaint and advise the complainant, in writing, if any further action will be taken under this procedure. If the substance of the complaint is entirely unrelated to harassment or discrimination, as defined under the Ontario Human Rights Code or the Occupational Health and Safety Act, there is no duty to investigate but the matter may be referred to the employee’s manager to address the underlying issue.

Standard of proof 

The standard of proof to be applied is the balance of probabilities which is a standard requiring that a dispute be decided in favour of the party whose claims are more likely to be true. Essentially, it states that something must be more likely to have happened than not to have happened. 

Step 3 – Investigation: 

If it has been determined that the complaint will proceed, an investigator will be assigned at the sole and exclusive discretion of the Director of Human Resources or designate. The investigation may be conducted internally by a member of Human Resources and/or management, or externally by a third-party investigator.

The designated investigator shall ensure that the investigation is conducted in accordance with the principles of procedural fairness and will be responsible for establishing the facts, including interviewing the complainant, respondent(s) and any relevant witnesses. The complainant, respondent(s) and any relevant witnesses may be called upon with minimal advanced notice to ensure the timeliness of the investigation process. 

The investigator will take the following steps as deemed appropriate in the circumstances: 

• The investigator will review the written complaint and any additional written submissions. 
• The investigator will inform the complainant, respondent(s) and witnesses of the requirement to maintain confidentiality and right to freedom from reprisal. 
• The investigator will advise the complainant and respondent(s) of their right to union representation (if applicable). 
• The parties will be reminded of the Town’s Employee and Family Assistance Program (EFAP) as an available support. 
• The investigator will interview the complainant. 
• The respondent will be advised of the allegations. 
• The investigator will interview the respondent(s) and provide them with an opportunity to respond to the allegations. 
• The investigator will interview any witnesses identified by either the complainant or the respondent(s) as having knowledge of the alleged incident(s). 
• The investigator will collect and review any relevant documents. 
• If necessary, at the discretion of the investigator, the complainant, respondent(s) or witnesses may be re-interviewed. 
• The investigator will take notes during all interviews and ensure that all documentation related to the investigation is maintained in a confidential manner. 
• The investigator will prepare a written report that may include all or part of the following, as appropriate in the circumstances: 
  • the steps taken during the investigation, the complaint, the allegations, the response from the respondent, the evidence of any witnesses and evidence gathered; and 
  • the finding of fact and conclusion as to whether the Town’s Respectful Conduct Policy and Respectful Conduct Procedure was violated and/or if workplace harassment or discrimination occurred.
• The report will be provided to the Director of Human Resources or designate to take appropriate action. 

Step 4 – Sharing of findings: 

Following the investigation, separate meetings will take place, when appropriate, with the complainant and respondent(s), along with their respective union representative (as applicable), to share verbally the findings of fact with respect to the investigation and the decision regarding whether the evidence indicated a violation of the Town’s Respectful Conduct Policy and Respectful Conduct Procedure. 

Subsequent to the meetings, the complainant and the respondent(s) will receive a written summary of the findings of the investigation. Information related to any corrected actions implemented will be shared, however, such information shared with regards to correcting action(s) taken will consider the privacy of employees and will not include personal information.

Investigation outcomes 

Substantiated complaints – Remedial and corrective action 

Individuals, regardless of status, seniority or tenure, influence or position, found to have violated the Town’s Respectful Conduct Policy and Respectful Conduct Procedure will be subject to corrective action.
Corrective action is intended to prevent a reoccurrence of workplace harassment or discrimination and restore a safe and respectful workplace free from workplace harassment and discrimination.
Corrective action may include, but is not limited to the following, either alone or in combination depending on the individual circumstances: 

• Attending appropriate sensitivity training or other required training. 
• Coaching/counselling. 
• Receiving a letter of expectation.
• Receiving a letter of discipline (verbal or written warning). 
• Suspension without pay. 
• Termination of employment. 
• Where applicable, being reported to a regulatory body or professional association. 

Unsubstantiated complaints

In the event that a complaint is not substantiated, the complainant and respondent(s) will be notified in writing and no further action will be taken. However, the Town may take any steps that it deems appropriate, including but not limited to: 

• Counselling for the parties. 
• Application of strategies to restore a positive working environment. 
• Education/training. 
• Mediation. 
• Other restorative measures. 

Confidentiality 

An investigation is a highly sensitive matter, and it is critical to maintain the utmost confidentiality throughout the process. This is important not only to protect the confidentiality of the matters at issue, but also to protect the integrity of the evidence. 

During the investigation and resolution of complaints, all information must remain confidential except where sharing information is otherwise required by law. Anyone who is aware of, or participates in an investigation as a Complainant, Respondent or Witness, must keep confidential: 

• The fact that a complaint has been filed. 
• The fact that they are being interviewed and the questions they were asked. 
• The issues discussed with the investigator during their interview. 
• Their opinions on the validity or nature of the complaint. 
• Whether, and what other, individuals might also be participating in the investigation. 

Participants in the investigation will be asked to sign a confidentiality agreement, including union representatives. 

Notwithstanding the above, confidentiality is not the same as anonymity. Procedural fairness requires that the respondent to the complaint be apprised of the nature of the complaint and by whom the complaint has been made so that they may have the opportunity to respond to the allegations.

Time limits 

In accordance with the Ontario Human Rights Code there is an expectation that allegations be brought forward within one year of an incident or series of incidents occurring.

This time limit may be waived at the sole and exclusive discretion of the Town if it is satisfied that the delay was incurred in good faith and that no substantial prejudice will result to any person affected by the delay.
In deciding whether an investigation is appropriate in the circumstances, the Town will consider all circumstances, including the timeliness of the complaint, nature of the allegations, among others. 

Union representation 

If a Complainant or Respondent are unionized employees, they may choose to have a union representative throughout the process. Union representatives may not disrupt the investigation or instruct an employee not to answer questions, except where there are criminal proceedings underway and there is a serious risk that the employee may incriminate themself. Union representatives may not answer questions on behalf of the Complainant or Respondent; their role is limited to clarifying questions or providing support if the person being interviewed is unclear about the question being asked of them. 

Union representatives have an important role in working together with the investigator and the employer in maintaining and preserving confidentiality, the integrity of the evidence, and the integrity of the investigation process. As such, the same confidentiality and privacy requirements stated above apply unless limited disclosure is required for the purposes of fulfilling duties that may arise under the terms of the collective agreement and in the performance of legitimate union representative duties. Union representatives will be asked to sign a confidentiality agreement. 

Freedom from reprisal 

Any act of reprisal or threat of reprisal is not acceptable and will be addressed consistently with the provisions of this procedure. Reprisal includes: 

• Any act of retaliation that occurs because a person has complained of or provided information about an incident(s) of workplace harassment or discrimination. 
• Intentionally pressuring a person to ignore or not report an incident or workplace harassment or discrimination. 
• Intentionally pressuring a person to lie or provide less than full cooperation with an investigation of a complaint of workplace harassment or discrimination.

Engaging in reprisal (or threatening to do so) may result in disciplinary action, up to and including termination of employment.

Vexatious complaints or bad faith 

The Town encourages its employees to bring forward complaints of discrimination and harassment without fear of reprisal or retaliation. While not all complaints may be substantiated or result in a determination that the Town’s Respectful Conduct Policy and Respectful Conduct Procedure have been violated, employees will not face discipline for filing a complaint in good faith. 

Although false accusations of workplace harassment and discrimination are rare, they have serious consequences for the Respondent. Complaint(s) which are found to be frivolous or vexatious in nature or made in bad faith may result in discipline up to and including termination of employment.

Records 

The secure storage of all records of complaints, including notes from meetings, interviews, results of investigations, and other relevant materials are the responsibility of the Director of Human Resources and the investigator (internal or external) and will not form part of an employee’s Human Resources file, unless counseling or disciplinary action is an outcome of an investigation and in that case a copy of the counseling or discipline letter will be placed in the employee’s file. All records of complaints will be kept confidential by the Town and the investigator, except where disclosure is required by law or as a consequence of litigation, potential or actual, where necessary, in order to effect a remedy.

Definitions

Complainant: The person alleging a breach of the Respectful Conduct Policy and who initiates a complaint of workplace harassment or discrimination.

Discrimination: is any practice or behaviour, whether intentional or not, that has a negative effect on an individual or group because of personal characteristics or circumstances unrelated to the person’s ability or employment. Discrimination may arise because of direct differential treatment, or it may result from the unequal effect of treating individuals and groups in the same way.

The Ontario Human Rights Code states that every person has a right to equal treatment in employment without being discriminated against based on the following prohibited grounds, as amended from time to time or as recognized by case law: 

• Age
• Ancestry
• Citizenship 
• Colour 
• Creed 
• Disability
• Ethnic origin 
• Family status 
• Gender expression 
• Gender identity
• Marital status
• Place of origin 
• Race 
• Record of offences
• Sex (including pregnancy & breast feeding) 
• Sexual orientation 

Discriminatory Harassment (Code-based): Discriminatory harassment is harassment (defined below) that is based on a ground protected under the Ontario Human Rights Code.
 
Some examples of Code-based discriminatory harassment may include: 

• Offensive comments, slurs, jokes, or behaviour that disparage or ridicule a person’s membership or perceived membership in one of the prohibited grounds such as race, religion, family status or sexual orientation. 
• Imitating a person’s accent, speech, or mannerisms. 
• Inappropriate comments or jokes about an individual’s age, sexual orientation, or personal appearance. 

Workplace Harassment (non-Code-based): Engaging in a course of vexatious comment or conduct against a worker in a workplace, including virtually using information and communications technology, that is known or ought reasonably to be known to be unwelcome.

Workplace harassment includes workplace sexual harassment (defined below) and creating or contributing to a poisoned work environment (defined below). Workplace harassment may have any of the following components: 

• It is generally repetitive, although a single serious incident may constitute workplace harassment if it has a lasting harmful effect. 
• It is hostile, abusive, or inappropriate. 
• It affects the person’s dignity or psychological integrity. 

In addition, behaviour that intimidates, isolates, or discriminates against the recipient may also be included. Some examples of workplace harassment include: 

• Verbally abusive behaviour such as yelling, insults, ridicule and name calling, including remarks, jokes or innuendos that demean, ridicule, intimidate or offend. 
• Workplace pranks, vandalism, or bullying. 
• Gossiping or spreading rumours, regardless of whether they are malicious. 
• Excluding or ignoring someone, including persistent exclusion of a particular person from work-related social gatherings. 
• Mobbing of an individual by a group of other employees. 
• Humiliating someone. 
• Offensive or intimidating phone calls, emails or social media posts. 
• Making false accusations about someone in emails or other work-related documents or social media. 

Harassment can take many forms and may be directed at an individual or group of individuals. Harassment can occur in various types of communication, including face to face exchanges, email correspondence, written correspondence, and the use of social media. 

Workplace harassment does not typically include: 

• Constructive feedback regarding performance or operational directives provided to employees by their supervisors, managers or directors is not considered harassment. 
• Legitimate, reasonable management actions that are part of the normal work function such as appropriate direction, delegation, performance management, counselling or discipline administered by a member of management. 
• Professional debate. 
• Attendance management. 
• Stressful events encountered in the performance of legitimate job duties. 
• Occasional disagreements or personality conflicts. 

Workplace Sexual Harassment: 

1. Engaging in a course of vexatious comment or conduct against a worker in the workplace, including virtually through the use of information and communications technology, because of sex, sexual orientation, gender identity or gender expression, where the course of such comment or conduct is known or ought reasonably to be known to be unwelcome, or 
2. 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. 

Sexual harassment also includes negative or inappropriate conduct of comment that not necessarily sexual in nature, but which are directed at an individual because of their gender. Comments or conduct of a sexual nature that are based on gender or sex that are necessarily directed at a particular individual but are unwelcome or offensive to an individual or group can also constitute sexual harassment. 

Anyone can be the subject of sexual harassment, regardless of their gender. Some examples of sexual harassment are: 

• Sexual advances or demands that the recipient does not welcome or want. 
• Threats, punishment or denial or a benefit for refusing a sexual advance. 
• Offering a benefit in exchange for a sexual favour. 
• Leering (persistent inappropriate staring). 
• Displaying sexually explicit material such as posters, pictures, calendars, cartoons, screen savers, videos, pornographic or erotic websites or other electronic material. 
• Distributing sexually explicit e-mail or text messages or attachments such as video files. 
• Sexually suggestive or obscene gestures or comments. 
• Persistent, unwanted attention after a consensual relationship ends. 
• Physical conduct of a sexual nature, such as touching or caressing. 
• Sexual assault. 
• Gossip or rumours regarding a person’s sexual activities or relationships. 
• Using homophobic or transphobic slurs or jokes. 
• Bragging about sexual prowess, or discussions about sexual activities. 
• Behaviour that promotes and/or reinforces traditional heterosexual gender norms.
• Intrusive comments, questions or insults about a person’s body, physical characteristics, gender-related medical procedures, clothing, mannerism or other forms of gender expression. 
• Refusing to refer to a person by their self-identified name and personal proper pronoun. 

Employee: A person hired by the Town for a union or non-union position, including but not limited to full-time, part-time, students, temporary/contract and interns. 

Mobbing: A form of workplace harassment or bullying when perpetrated by a group rather than an individual. 

Reprisal: Any act of retaliation that occurs because a person has complained of or provided information about an incident(s) of workplace harassment or discrimination. 

Respondent: The person who is alleged to have breached the Respectful Conduct Policy and about whom a complaint of workplace harassment or discrimination has been made. 

Witness: An individual who may be able to provide information about workplace comments/conduct that are alleged to have violated the Respectful Workplace Policy. Witnesses are not entitled to investigation results or complaint details unless the disclosure is necessary for the purpose of investigating allegations. 

Workplace: The Workplace includes all locations where business or other activities of the Town are conducted, including virtual meetings, remote work locations, and work-related social events. The Respectful Conduct Policy and Procedure may apply to incidents that happen away from work (e.g., inappropriate social media posts, phone calls, emails or after work socials) if the discrimination or harassment affects the workplace.

Responsibilities

Town employees share a responsibility to create and maintain an environment that is respectful, inclusive, and free from workplace harassment and discrimination. 

Shared responsibilities: 

• Become familiar with and abide by the requirements of the Town’s Respectful Conduct Policy and Respectful Conduct Procedure. 

• Act respectfully when interacting with Town employees and members of the public. 

• Promote a workplace that is free from workplace harassment and discrimination. This means not engaging in, condoning, or ignoring behaviour contrary to the Town’s Respectful Conduct Policy and Respectful Conduct Procedure. 

• Report incidents of workplace harassment or discrimination that have been experienced or witnessed in accordance with this procedure and in a timely manner. 

• Be honest, forthcoming, and fully cooperate with the Town in good faith in efforts to investigate and resolve matters under this procedure. 

• Abide by privacy and confidentiality expectations. 

• Participate in training as required. 

Management responsibilities:

• Provide an environment that is free from workplace harassment and discrimination. 

• Lead by example by not tolerating, engaging in, or condoning workplace harassment or discrimination or other violations under the Town’s Respectful Conduct Policy and Respectful Conduct Procedure. 

• Communicate to employees in their respective departments that workplace harassment and discrimination is not permitted and will not be condoned or ignored. 

• Take immediate and reasonable steps to address issues of workplace harassment and discrimination when they become aware or ought to have known in accordance with this procedure, regardless of whether a formal complaint has been filed. 

• Engage Human Resources when learning of allegations or the potential of workplace harassment or discrimination. 

• Cooperate fully and allow employees to be available to participate in investigations and other resolution processes. 

• Be sensitive to the nature of the complaint and implement recommended changes in the workplace. 

• Keep all information about a complaint and/or investigation confidential. 
  Provide information to workers on various support programs (i.e. Employee and Family Assistance Program) as appropriate. 

Human Resources responsibilities: 

• Provide training and education to all employees and management on the Town’s Respectful Conduct Policy and Respectful Conduct Procedure including their responsibilities. 

• Providing guidance on the Town’s Respectful Conduct Policy and Respectful Conduct Procedure to all employees, supervisors and managers. 

• Act in a timely manner when a becoming aware of workplace harassment and discrimination regardless of whether a formal complaint is received under the policy. 

• Investigate complaints internally and/or determine when an external investigator is required. 

• Record and maintain appropriate documentation. 

• Exercise objectivity and impartiality. 

• Ensure confidentiality except as necessary to investigate or otherwise require by law.