Human Resources Committee on Feb. 12th, 2018

[Steven Blaney, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

You're talking about the obligation of the employee, so are you saying that if an employee goes to you and says they were harassed in their workplace, you will say go back to your employer and follow the process? Is it what I've been hearing all afternoon?

[Barbara Moran]

I think the first step in it is that yes, indeed, they need to make their employer aware of the incident.

That said, if the employee doesn't feel that they're able to come to a resolution of the issue, then the employer is obligated to undertake an investigation by a competent person. That would be a person who would have to be agreed upon by both the employer and the employee as somebody who could neutrally and competently undertake an investigation.

[Steven Blaney, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

Okay, let's talk about this competent person. I find that it's not clearly defined in the law. Can you explain to me who would be a competent person? What will be their qualifications? How will these people be chosen? With regard to their decisions, how will they be implemented or followed by the employer?

[Barbara Moran]

The qualities of the competent person will be one of the areas that we're going to clearly spell out through the regulations. The idea would be that in the regulatory process we'll be able to consult with employers and employees, as well as other experts, to make sure we get the qualifications correct for who we would deem to be a competent person. That will be spelled out in the regulations.

[Steven Blaney, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

This competent person, if I understand you well, can be within the organization or without? Is that correct?

[Barbara Moran]

Again, it will be worked out through the regulations, but in theory, yes, if that's what they want to put in place. Again, I think the key part about it is that there has to be mutual agreement between the parties, the employer and the employee, that this indeed is a competent person. The regulations are going to spell out what those qualifications are for a competent person, but then it has to be agreed upon.

[Steven Blaney, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

Let me get back to this example of the employee not agreeing on the competent person. Can she go to the department and have this investigation conducted by the department?

[Barbara Moran]

Again, through the regulations, we would look at putting in, I would suggest, a time limit by which there needs to be agreement. You don't want to have people just continually disagreeing. There's going to be a time limit, and then at that point, yes, it could come to the labour program.

[Steven Blaney, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

You're telling me finally that if at the end of the duration an employee is not satisfied with the competent person or the process that has been implemented by the employer, they then can file a complaint to the labour department?

[Barbara Moran]

They can file a complaint at any point. It could be, for example, that your employer doesn't have a policy, or that you bring a complaint forward to your employer and they don't respond. At any point in that process, they can come to the labour program with their complaint.

[Steven Blaney, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

For being harassed, can they...?

[Barbara Moran]

The labour program isn't going to investigate the complaint of harassment specifically. The role will be to investigate if the process has been followed. The idea is that in the process that's set out, there would be a competent person identified by the employer and the employee who would undertake an investigation.

[Steven Blaney, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

Again, if we don't agree on a competent person, where do we go from there?

[Barbara Moran]

You go to the labour program.

[The Chair, Liberal, Bryan May]

Thank you.

MP Morrissey is next, for six minutes.

[Bobby Morrissey, Liberal, Egmont, PE]

Thank you, Chair.

I wanted to follow up on a point that was raised by Ms. Harder. What was the rationale for the former government on Bill C-4? It was an omnibus piece of legislation introduced by Ms. Leitch at the time. It was a change, and in the language in the bill it named the minister directly to deal with frivolous complaints. What was the rationale used by the government for that change at the time?

[Brenda Baxter]

I don't know what the rationale for the government was, but at the time, the introduction of the ability for the minister to determine that a complaint would be frivolous, vexatious, or in bad faith was associated with the changes regarding the refusal-to-work process. If a refusal to work was made and it was seen that there was no merit to it, no facts against it, there would be an ability for the minister, through her delegates, to make a decision not to investigate.

[Bobby Morrissey, Liberal, Egmont, PE]

The issue of the minister being involved and named was brought in at that time on those changes in Bill C-4. Am I correct?

[Brenda Baxter]

Are you speaking about the change from a designation model to a delegation model?

[Bobby Morrissey, Liberal, Egmont, PE]

Yes.

[Brenda Baxter]

Yes, that was brought in at that time.

[Bobby Morrissey, Liberal, Egmont, PE]

Okay. Further to that, because it's important in this piece of legislation—and it's important for our government—to ensure that there is an unbiased investigative approach, could you elaborate on the steps taken in this legislation that ensure the minister is kept removed from those positions so that there cannot be even the perception of bias?

The case was identified that, well, if the minister got a complaint from a Liberal member versus somebody else, and we're now the government, how is the public assured that there will be no bias?

[Barbara Moran]

I'll begin, and then I'll turn to my colleague to add to it.

Essentially, the intention of the legislation is to include a number of steps that need to be undertaken before a complaint could potentially come forward to the labour program. In other words, when employers become aware of an issue, they have a duty to try to resolve it informally. If at that stage the parties to the complaint are not satisfied, then the employer has a duty to undertake an investigation led by a competent person.

That's where you get impartiality and bias. The department of labour isn't involved at that point, other than.... There will be some reporting, but that's it. An investigation gets undertaken, recommendations are made through that report, and then it's up to the employers to implement those recommendations. Again, the department is not involved. The only time the department would get involved would be if there were a complaint that the process hadn't been followed.

[Bobby Morrissey, Liberal, Egmont, PE]

Let me rephrase my question, because you are the same senior advisers who were advising a former minister. Am I correct?

[Barbara Moran]

Yes.