Procedure 36-2 - Complaints of Harassment/Discrimination initiated by employees

Date effective: 2017-01-18

Authorized by: Administration Committee

COMPLAINTS OF HARASSMENT/DISCRIMINATION INITIATED BY EMPLOYEES

PURPOSE

1. The purpose of this Procedure is to establish a process for all complaints of harassment and/or discrimination initiated by employees and is developed pursuant to the University’s Policy No. 67a on the Prevention of Harassment and/or Discrimination. This Procedure does not prevent or is not intended to discourage an individual from filing an application with the Ontario Human Rights Tribunal within the deadlines set out in the Ontario Human Rights Code or an individual’s right to pursue any other external legal recourse that may be available.

APPLICABLE COLLECTIVE AGREEMENT

2. This Procedure is not meant to replace or supersede complaint or investigation processes in applicable collective agreement provisions. If there is an applicable collective agreement, the complaint will be dealt with under the relevant provisions of that collective agreement and where there is no applicable collective agreement or no relevant provisions within a collective agreement, the complaint will be handled in accordance with this Procedure.

SUPPORT

The Human Rights Office (“HRO”)

3. If an employee feels that he or she is the subject of harassment and/or discrimination, the employee should contact the HRO. 4. If a party to a complaint is a unionized employee, he or she will be informed of his or her right to be accompanied by a union representative at any time. If a party is not a unionized employee, he or she will be informed that he or she may be accompanied by a person of their choice at any time during the informal or formal stages outlined in this Procedure. The person may be present for support during the handling of the complaint, however, that person’s role is not to represent or speak for a party to the complaint in communications or meetings. The person must also agree to maintain the confidentiality of information exchanged.

CONFIDENTIALITY

5. a) Confidentiality of information disclosed at any time pursuant to this Procedure, including during mediation or other efforts to resolve the matter, is maintained to the extent possible and consistent with the University’s need to respond appropriately to the situation. This means that information about the complaint is provided only to those who need to know in order to investigate and/or resolve the complaint and where appropriate, the person will be consulted before any disclosure of information is made.

b) Individuals involved in a complaint must and are expected to maintain confidentiality. Breaches of confidentiality may jeopardize the proper functioning of the processes outlined in this Procedure. If breaches of confidentiality occur, they will be followed-up and depending on the circumstances, could lead to consequences for the person responsible for the breach.

c) Information disclosed by a person during a mediation or during other complaint resolution efforts under this Procedure is without prejudice to that person and cannot be used during subsequent steps of the informal or formal complaint process under this Procedure. Any person conducting a mediation of a complaint may not be called to testify in a subsequent proceeding in relation to information disclosed during mediation, unless ordered or compelled by a court, tribunal or arbitrator.

INFORMAL PROCESS

Potential options for resolution

6. Once contact with the HRO has been made, a Human Rights Officer (“Officer”) will meet with the employee to discuss the circumstances and the employee’s expectations and outcome sought. The Officer will make every effort to assist the employee and will discuss with the employee possible options to address or resolve the matter, for example:
a) referral to suitable services or resources available at the University or in the community;
b) communication with the person involved to inform that person of the alleged harassment and/or discrimination and that such conduct is unwelcome and must cease;
c) informal resolution of the matter by mediation;
d) filing of a formal complaint.

Mediation

7. Depending on the nature of and circumstances surrounding the matter, there may be an informal resolution by mediation with mutual participation of those involved. Mediation is voluntary. The parties may refuse to participate in mediation or if they agree to participate, they will so indicate by written agreement and either may discontinue the mediation at any time. The decision not to participate or to discontinue mediation will not be held against a party.

FORMAL COMPLAINT PROCESS

8. The Officer will inform the employee on the process for filing a complaint.

Timing for filing and content of complaint

9. If a resolution has not been reached informally, an employee who believes to be the subject of harassment and/or discrimination (the “Complainant”) may file a formal complaint with the Officer by setting out in writing the name of the individual against whom the complaint is made (the “Respondent”). The complaint must also set out the nature and the extent of the allegations of harassment and/or discrimination, for example, detailed facts, specific dates and names of potential witnesses.

10. In order for the complaint to be processed, the complaint must be,
a) filed within 12 months of the last incident of the harassment and/or discrimination; and
b) within the scope of harassment and/or discrimination.

11. The Officer will acknowledge receipt of the complaint, communicate with the Complainant on the information contained in the complaint and seek clarification, if necessary.

Sending of complaint to the Respondent and to the Appropriate Authority

12. The Officer sends a copy of the complaint and of any other information obtained from the Complainant to the Respondent and informs the “Appropriate Authority”

a) If the Respondent is unionized and there is an applicable collective agreement process for the investigation of harassment and/or discrimination complaint, the Appropriate Authority’s handling of the complaint, of any investigation and the outcome will be pursuant to that collective agreement and not pursuant to this Procedure.

b) If the Respondent is unionized and where there are no relevant provisions within the applicable collective agreement, the Appropriate Authority to receive the complaint is the relevant Director, Associate Vice-President having position of authority over the Respondent.

c) If the Respondent is not unionized, the Appropriate Authority to receive the complaint is the relevant Director, Associate Vice-President, Vice-President, President having a position of authority over the Respondent.

d) If the Respondent is an undergraduate student, graduate student, special student, postdoctoral fellow, medical resident or clinical faculty member who is not unionized, the Appropriate Authority to receive the complaint is the Dean having authority over the Respondent.

e) If the Respondent is a University contractor, visitor or volunteer, the University employee in a position of authority over the Respondent will be the Appropriate Authority to receive the complaint.

Response

13. The Officer will ask the Respondent to respond in writing to the complaint within 10 working days from the date the complaint was sent to the Respondent. The complaint will be processed in the absence of a response.

Officer’s Assessment

14. Once the complaint and response, if any, have been received, the Officer will assess whether the complaint:
a) requires no further action because the complaint,
     i) is withdrawn or has been resolved,
     ii) is outside the scope of harassment and/or discrimination, or
b) could benefit from mediation with mutual participation of the Complainant and the Respondent, if they so choose; or
c) requires investigation.

15. The Complainant and the Respondent are informed in writing of the assessment of the complaint and of the review process when available under paragraph 16 of this Procedure. If the complaint requires no further action, the Officer closes the file. The Officer will also inform the Appropriate Authority of the assessment.

Review of the assessment

16. A request to review the assessment of the complaint made under section 14 of this Procedure is only available if the assessment is that the complaint is beyond the scope of harassment and/or discrimination.

17. If the Complainant disagrees with the assessment that the complaint is beyond the scope of harassment and/or discrimination, then he or she may ask the Director of the Human Rights Office (“Director”) to review the Officer’s assessment provided the Complainant submits the request in writing and within 30 days of the date of the Officer’s assessment. Upon review, the Director’s decision is final and will be communicated to the Complainant and the Respondent in writing. The Officer and the Appropriate Authority are also informed of the decision.

Mediation

18. While the Officer may assess that the complaint could benefit from mediation, either the Complainant or the Respondent may refuse to participate in mediation. If the parties agree to participate, they will so indicate by written agreement setting out on what terms the mediation will take place. Either the Complainant or the Respondent may discontinue the mediation at any time. The decision not to participate in mediation or to discontinue mediation will not be held against either party and the complaint will proceed to investigation

Investigation

19. If the complaint has not been resolved or withdrawn, the Officer will determine whether the investigation will be conducted internally or whether the situation warrants an external investigator. If the investigation is conducted by a staff member, that person may delegate certain tasks to a person in order to facilitate an efficient investigation.

20. The investigator communicates with the Complainant, the Respondent to allow them to provide any additional information or comments and with any other witness or person deemed necessary to enquire into the allegations and in order to obtain a witness statement, verbal or written, and when written signed by the witness. The Officer will keep the Complainant, the Respondent and the Appropriate Authority informed on the status of the complaint and of the investigation.

FINDINGS AND OUTCOME OF THE COMPLAINT

Draft investigation report

21. Upon completion of the investigation, the investigator will send a written confidential draft report containing the investigator’s findings of fact and his or her determination that the complaint is substantiated or not or a determination that the investigation is inconclusive. The Complainant and the Respondent may send written comments to the investigator within 10 working days of the date of the report.

Final investigation report

22. If the complaint has not been resolved or withdrawn and after the period during which the Complainant and the Respondent may provide comments on the draft report, the investigator finalizes the report and sends a copy of the final confidential report to the Complainant, the Respondent and to the Appropriate Authority. If the investigation was conducted by an external investigator, the investigator also sends a copy of the final report to the Director.

Outcome

23. The Appropriate Authority reviews the final report and, based on the findings and determinations contained in the report, he or she,
a) decides or recommends on the imposition of any measures necessary and appropriate in the circumstances; and
b) follows-up to determine if the measures imposed are effective in preventing the reoccurrence of the harassment and/or discrimination.

24. Consequences resulting from harassment and/or discrimination will depend on circumstances, on the seriousness of the conduct, on any mitigating factors and on applicable collective agreements or other University policy. If a complaint is substantiated, consideration must be given to prevent the harassment and/or discrimination from recurring in the future, to correct the negative impact of the incident on the complainant and discipline the respondent. The following list provides examples of consequences/remedial measures and is not meant to be exhaustive nor necessarily represents a progression of sanctions or measures:
a) A letter of apology
b) Attendance at educational sessions on harassment and/or discrimination
c) Attendance at coaching sessions to improve communication or conflict resolution skills
d) Attendance at sessions to address any residual matters, conflicts or disputes
e) Prohibited or restricted access to University campuses
f) Disciplinary measures such as reprimand, suspension, dismissal, expulsion

25. The imposition of sanctions and measures will take effect immediately unless the report and/or sanctions require the approval or decision of the Administrative Committee or other governing authorities at the University.

Communication of the outcome

26. The Appropriate Authority will inform the Complainant and the Respondent in writing of the outcome of the complaint and information related to sanctions or other outcome may be disclosed subject to applicable collective agreement provisions, other University policy and access to information and privacy legislation.

SYSTEMIC DISCRIMINATION IN RELATION TO EMPLOYEES

27. The informal and formal processes set out in this Procedure shall apply, with necessary modifications, to the treatment of an allegation of systemic discrimination. The Associate Vice-President Human Resources shall act as the Appropriate Authority.

OTHER RECOURSE

28. After exhausting the complaint process under this Policy and any other complaint process available at the University, the Complainant or Respondent may seek the assistance of the University Ombudsperson.

INTERIM MEASURES

29. Arrangements may be made at any time during the handling of a complaint and where appropriate in the circumstances so that the Complainant and the Respondent are separated or that communications between the two cease or are reduced, in order to stabilize the situation, in the interim, pending the outcome of the complaint.

DEADLINES AND TIMELINES

30. The deadlines mentioned in this Policy for the filing of a response, reply and sending of a report are meant to ensure that a complaint is dealt with in a timely fashion. There may be, in exceptional and compelling circumstances, reasons to extend a deadline. In such a case, the Director or his or her delegate may extend a deadline where the delay is incurred in good faith and the extension does not prejudice or harm those involved in the complaint.

31. It can be impossible to determine appropriate time lines for the resolution, investigation or final decision with respect to a complaint. Therefore, where no deadlines are mentioned in this Policy, the intention is to use a reasonable period time period and to act as expeditiously as possible in light of the nature and complexity of the circumstances of the complaint and in light of other circumstances that may arise during the complaint process that are beyond a party’s reasonable control.

REVIEW AND IMPLEMENTATION

32. The HRO is responsible for the review and implementation of this Procedure.

AMENDMENT

33. No amendment may be made to this Procedure without the approval of the Administrative Committee. A copy of this Procedure as amended and approved will be posted on the University’s website and sent for information to the unions, and to groups representing non-unionized staff.

Revised: January 18, 2017

(Human Rights Office)

 

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