Towards a Workplace
Free of Conflict and Harassment

RESOLVING CONFLICTS

Informal resolution mechanisms
Prompt resolution
Conciliation
Mediation
Co-mediation

The Formal Harassment Complaint Process
Filing a complaint with the Office of Conflict Management

Conduct of the Investigation
Basic principles
General principles under the Privacy Act
Summary of the formal investigation process
The Deputy Minister's findings
Consequences associated with these findings

RESOLVING CONFLICTS

Informal resolution mechanisms

Like many other problems, conflicts and harassment situations do not resolve themselves. Without prompt action to diffuse them, they tend to escalate and become more acrimonious. Rarely does time alone resolve the matter.

Prompt resolution

The purpose of this procedure is to resolve any situation or conflict as quickly as possible, fairly and respectfully, without recourse to the formal complaint process. This means making every effort to resolve the situation by communicating frankly and cooperating fully. As part of this informal process, use of dispute resolution mechanisms such as facilitation and mediation can prove very effective.

Any allegation of harassment is serious. Employees who believe they have been harassed are entitled to avail themselves of the help available, regardless of its source.

If you feel you have been harassed. . .

Talk to the person concerned. An employee who feels offended or humiliated by the behaviour of another person is urged to tell the person so as soon as possible. The employee will thus have the opportunity to settle the problem with the other person or, at the very least, prevent the situation from escalating.

An employee who believes that he has been harassed can try explaining to the person why the offending behaviour is making the employee uncomfortable. The person may not realize the impact of his comments or actions. The explanation may provide an opportunity for the person to recognize that they are at fault and promise not to repeat the offending behaviour. A frank discussion is a very effective way of diffusing a conflict.

Write a letter. Where a conflict occurs, sometimes an employee may feel more comfortable writing to the person than meeting with him face to face. The employee should describe the incident and his feelings about it. He may want to indicate what he expects of the person by asking, for example, that the behaviour in question stop. Sticking to the facts, without being judgmental, increases the chances of this initiative succeeding. Should a face-to-face discussion prove unsuccessful, writing a letter is a very effective alternative worth considering.

Keep a record. Finally, it is a good idea to keep a record of certain information, such as dates, times, and places, and documents, such as letters, etc., relating to alleged incidents and the follow-up action taken concerning them. This is an excellent way to preserve your recollection of events and how they were dealt with.

If someone finds your behaviour offensive . . .

Stop the behaviour. Stop immediately the behaviour that the person finds offensive. This may mean toning down your voice, not swearing, or not telling jokes in the presence of the person you have offended. This may "cramp your style", but maintaining good relations in the workplace sometimes requires some accommodation on everyone's part.

Apologizing can often prevent the conflict from escalating, even if you feel there was a misunderstanding. A sincere apology at the appropriate time will, in most cases, prevent or resolve harassment complaints. Apologizing is a gesture of good faith that will be taken into consideration even if a formal complaint is eventually filed.

If a manager becomes aware of a conflict . . .

Act immediately. To prevent a conflict from escalating, prompt action is required, and it is the responsibility of the immediate superior to take this action. If he witnesses a conflict or is made aware of a problem, he has a duty to act. Failing to act is tantamount to condoning the situation. The "Management Profile", a document that serves as the standard for measuring managers' performance, states emphatically that managers are responsible for acting promptly and discreetly to put an end to any inappropriate behaviour that occurs in their workplace. This requirement of Treasury Board's policy is also dictated by the imperatives of sound management, whether or not a complaint is made. An informal complaint or rumour is itself sufficient to justify action by the manager, even where the victim asks that nothing be done.

Acting before the situation deteriorates is the key to effective intervention. By contacting the OCM at the first sign of a problem, the manager leaves nothing to chance. At the first rumour of conflict or harassment in his unit, the wise manager will seek advice from the OCM and HRD on what action to take to resolve the conflict.

The manager must take the initiative, for example, by holding a frank discussion, in private, with the author of the inappropriate behaviour in order to put an end to the situation. This approach is very effective particularly in cases where individuals concerned do not appear to be aware of the impact of their behaviour on others.

Hold an awareness session. Offered by the OCM, this session helps employees think about what constitutes appropriate workplace behaviour and encourages them to talk openly about workplace conflicts, harassment and related issues. Sessions like this can often prevent conflicts and rectify an existing situation without further action being required.

If further action is required . . .

The manager, or the person who claims to have been the victim of inappropriate behaviour, can ask the OCM for the services of a neutral and impartial third party, if the offensive behaviour persists or escalates. This initiative, if taken at the appropriate time in a conflict, can produce excellent results. Rather than conduct his own investigation, with the risks that this entails, the manager has good reason, at this stage of the conflict, to enlist the services of an expert advisor in the OCM.

Third party assistance. Where the efforts of the parties to a conflict or the manager's efforts fail to resolve the conflict, it can in fact be useful to have recourse to a third party. Often a third party is in a better position to help the persons concerned find a satisfactory solution, without having to resort to a formal complaint. Anyone can request assistance: the person who claims to have been the victim of offensive behaviour, the person alleged to have behaved inappropriately, or even an employee who either witnessed the conflict or has simply heard about it.

The third party can be a colleague or a manager, an official from the Employee Assistance Program or even a union representative. This individual should be someone who inspires confidence and has a reputation for honesty, integrity and impartiality. In these circumstances, however, the choice of an individual must be made with the utmost care. Choosing the right person, someone who has your complete trust, will avoid inflaming the situation. In summary, while the intervention of a third party can be very useful, not all situations lend themselves to this approach. If you are unsure where to turn for help, the best solution is to contact the OCM directly.

Conciliation

The OCM will try to re-establish communication between the parties to encourage them to examine and resolve the conflict situation. To this end, it:

• notifies immediately the person against whom the complaint has been brought;
• discusses with the two parties the options available to them;
• helps the parties to understand how the conflict arose and identify specific measures to resolve it (an apology, an explanation, an understanding (either oral or written) concerning future relations between the parties, and requiring the person whose behaviour caused the problem to undergo training in appropriate workplace behaviour).

Mediation

Where mediation is appropriate and is agreed to by both parties, the OCM will use the services of a qualified mediator from outside the Department. Mediation can be used at any stage of a conflict or of the harassment complaint resolution process.

Despite his best intentions and professional experience, the mediator can bring the parties together only if they have a strong desire to reach a settlement. The mediator has no decision-making power, only the power of persuasion. His role is:

• to establish and keep open the channels of communication;
• to help the parties articulate their viewpoints and needs;
• to identify the issues that need to be addressed;
• to suggest to the parties ways of resolving the problem that are appropriate in the circumstances.

Co-mediation

In some cases, the OCM may consider using co-mediation. Co-mediation is well suited to more complex cases in which gender, racial or cultural factors are present. Two mediators, often of different genders, cultures, professional backgrounds or expertise, work together to facilitate negotiation in order to establish a climate of trust that will eventually enable the parties to resolve the problem.

Sometimes one of the parties, or both, wish to be assisted by another person. This request can be accommodated. If the two parties agree, third parties, colleagues or supervising managers involved in or affected by the conflict may be asked to participate in the mediation, not to give legal advice, but to provide moral support.

THE FORMAL HARASSMENT COMPLAINT PROCESS

Every employee has the right to file a formal complaint with the Executive Director of the OCM as soon as it is clear that the informal resolution mechanisms described above have not produced the expected results or are considered inappropriate.

Filing a complaint with the Office of Conflict Management

The complaint must be made in writing to the Executive Director or to the Deputy Minister if the Executive Director of the OCM is the subject of the complaint. It must normally be filed within a year following the alleged harassment, except in exceptional circumstances. The complaint must contain the following information: a description of the nature of the allegations, the name of the respondent, the relationship between the respondent and the complainant (e.g. immediate supervisor, colleague), the date of the incident(s) and a description thereof and, where applicable, the names of witnesses. The information provided must be as accurate and concise as possible.

 CONDUCT OF THE INVESTIGATION

Basic principles

To ensure fairness to both parties to the conflict, the investigation must be conducted in accordance with the procedure described below:

1. Once the investigation begins, both parties will be kept informed of its progress, but should not discuss the case (except with the investigator or to seek advice or assistance) since this could prejudice the investigation.
2. Where an investigation that is in progress is suspended to give mediation a chance, mediation can include a representative of the Department, appointed by the Deputy Minister, in order to protect the interest of the Department in ensuring a harassment-free workplace and in restoring a positive working environment without delay. Implementation of any settlement reached through mediation is monitored by the OCM for two years. Should efforts to mediate a formal complaint fail, the investigation resumes.
3. When the situation warrants it, the Executive Director can recommend the transfer of the person accused of harassment to another position within the Department for the duration of the investigation. If the complainant's immediate supervisor is the subject of the complaint, the complainant can be asked to report to another supervisor temporarily. At the complainant's request, HRD can intervene to try and find the supervisor/respondent another suitable position for the duration of the investigation. However, the complainant must return to his former position if the investigator were to conclude that the complaint was filed in order to obtain a transfer.
4. During the investigation, the complainant will not be transferred from his job or required to move to a different office against his will. The complainant will not automatically be moved as a way of resolving the complaint or ending the investigation. If the complainant wishes to be moved, the following principles will be observed:

• each request is dealt with on a case-by-case basis, showing flexibility;
• the complainant, if he wishes, and if he is an indeterminate employee, is offered a new permanent position where possible, without the move putting the complainant at a disadvantage;
• nothing will be done to obstruct or cut short the complaint resolution process;
• any relocation will be undertaken promptly;

every effort will be made to maintain a productive work environment.

1. All results of formal investigations, without exception, are communicated in writing to the Deputy Minister, except where formal complaints are settled through mediation. A person who lays a complaint cannot therefore stop the process once it has been initiated. This ensures that a complainant will not be intimidated into resolving a complaint. It also ensures that the Department will investigate all harassment complaints that the Executive Director receives. Because a complaint cannot be decided before an investigation has been completed, victims of harassment know that they will receive a hearing and that their initiative will not be in vain.

Where relocation is not possible, and the complainant indicates to the OCM that the situation is extremely difficult and stressful, the OCM will provide the complainant with information on other options, such as the Employee Assistance Program or even leave, where appropriate.

General principles under the Privacy Act

To ensure that all the parties concerned receive equal treatment and that the requirements of the Privacy Act are met, the investigation is conducted and the report examined based on the following general principles:

• persons have the right to their own personal information;
• persons whose names appear in a report have the right to see what the report says about them;
• the parties involved in the complaint have the right to examine the report after review and application of the Privacy Act by the ATIP Office;
• third parties have the right to examine the personal information concerning them in a report;
• transparency and responsibility are essential to the effectiveness and fairness of the investigation and complaint resolution process;
• all information useful to the investigation is communicated to the parties directly concerned to enable them to fully understand how the investigation was conducted and the findings were made, and to enable them to answer fully the allegations or criticisms made concerning them;
• the names of the witnesses questioned will appear in the report.

The investigator will explain these principles to the parties and to all the witnesses. The OCM reminds the parties and the witnesses of the importance of discretion and asks them to treat the investigation and the report confidentially.

 Summary of the formal investigation process

Examination of the complaint

Upon receipt of a complaint, the OCM:

1. acknowledges receipt of it in writing;
2. ensures that the complaint contains the necessary information;
3. evaluates the complaint by verifying that it was in fact filed within a year following the alleged incidents of harassment;

4. If these requirements are not met, and unless circumstances prevented the complainant from meeting them, the OCM rejects the complaint and informs the complainant in writing, explaining to him the options available to him. If the complaint is in order, the OCM notifies the respondent that a complaint has been received and informs him of the facts of the complaint.

5. Once it accepts a complaint, the OCM carefully examines it to ensure that the facts alleged meet the definition of harassment or abuse of authority;
6. if the complaint does not meet the definition or concerns a labour relations matter (e.g. performance evaluation), the complainant is notified immediately and informed of the appropriate redress procedure;
7. if, however, the facts alleged meet the definition, the OCM implements the following procedure:

• mediation is proposed and encouraged;
• a preliminary investigation, which should be completed within 20 days, is launched by the OCM and it is carried out by an independent investigator to determine whether there is sufficient evidence to warrant a formal investigation;
• at the conclusion of the preliminary investigation, the parties are urged to make use of mediation or conciliation;
• if conciliation or mediation does not resolve the conflict, there is a full investigation if the findings of the preliminary investigation warrant one. (The steps in the investigation process are described in the Investigation Protocol);
• the investigation begins immediately so that, ideally, the entire process is completed within 60 days;
• the investigator submits an interim report to the OCM;
• the OCM immediately forwards the investigator's report to the Access to Information and Privacy Office so that it can identify all personal information relating to third parties and apply the requirements of the legislation;
• the OCM then invites the parties to make written comments to it, in particular on the testimony of the other persons mentioned in the report or on any other aspect considered relevant;
• the investigator writes a final report and submits it to the OCM;
• the final report is then reviewed by the Access to Information and Privacy Office;
• after the application of the ATIP requirements, the final report is then communicated to both parties;
• both parties have 10 working days in which to submit in writing to the OCM their final submissions for the Deputy Minister's consideration;
• the final report is also provided to HRD for their recommendations to the Deputy Minister concerning the appropriate disciplinary or corrective measures;
• finally, the OCM transmits the complete file, along with its recommendations, to the Deputy Minister;
• the Deputy Minister communicates his decision in writing to both parties as soon as possible.

The Deputy Minister's findings

On the basis of the investigator's report, the submissions made by the parties to the conflict and the recommendations of HRD and the OCM, the Deputy Minister makes one of four findings:

1. the complaint is substantiated;
2. the complaint is substantiated, but both sides were found to have harassed each other;
3. the complaint is not substantiated;
4. the complaint is vexatious or was made in bad faith.

The Deputy Minister then decides what corrective or disciplinary measures are appropriate. He communicates the reasons for his decision to the parties without delay and informs them at the same time of possible avenues of redress. The OCM, together with HRD, ensure that the corrective or disciplinary measures imposed are implemented.

Consequences associated with these findings

Because each of the aforementioned findings may require the taking of appropriate corrective measures, it is important that all the Department's employees know the definitions of these findings and clearly understand their possible implications.

If the complaint is substantiated -- A substantiated complaint meets the legal definition of "harassment", "sexual harassment" or "abuse of authority". If a complaint is substantiated, the harasser will be disciplined. The discipline will be in keeping with the seriousness of the complaint. It may include any one or a combination of the following: a formal apology, an oral or written reprimand, training in appropriate workplace behaviour, professional counselling, a financial penalty, suspension without pay or removal from a management position, or, in the most serious cases, termination of employment. The notice of discipline is sent to the harasser and placed in his personal file.

The complainant has the right, subject to the provisions of the Privacy Act, to request and be given information on the corrective measures, including the disciplinary penalties, taken against the respondent in the case of a substantiated complaint. When this information is disclosed, each of the parties is reminded that its disclosure is intended to promote the restoration of healthy labour relations and provide them with some closure to the conflict. The information is provided in confidence and must not be used to further "punish" the harasser.

If there was harassment on both sides -- In this case, the behaviour of both parties will be evaluated separately, and any measures will be based on their own conduct. They may be asked to take part in training or counselling or to participate voluntarily in mediation if the Deputy Minister decides, following consultation with the responsible manager, that their participation would help restore positive working relationships. Third parties and supervising managers affected by the conflict may also be asked to participate, with the agreement of all the parties involved. One or both parties could also be disciplined, depending on the circumstances in which the conflict evolved. If discipline is applied, a copy of the notice of discipline will be provided to the person(s) disciplined and placed in the personal file(s) concerned.

If the complaint is not substantiated -- A complaint may be rejected for a variety of reasons. There may be insufficient evidence. Another reason is that the problem identified may not meet the legal definition of harassment or abuse of authority. Or the complaint may stem from a difference in perception where the respondent could not or ought not reasonably to have known that his behaviour was offensive or unwelcome. If there is insufficient evidence, no disciplinary action will be taken against the respondent and his personal file will not contain any reference to the complaint.

However, any conflict, whether or not it meets the legal definition of harassment, has an impact on the persons concerned and the workplace. Even if a complaint is not substantiated, a manager still has a responsibility to protect the workplace from harassment. The OCM is always there to assist him should the need arise.

If the respondent believes that his reputation has been harmed as a result of unsubstantiated allegations, he has the right to request in writing, to the Deputy Minister, that his decision be communicated to everyone involved in the investigation.

If the complaint is found to be vexatious or made in bad faith --In this case, the complainant will be subject to disciplinary action: a formal apology, a verbal or written reprimand, training in appropriate workplace behaviour, a financial penalty, suspension without pay or, in rare cases, termination of employment. The notice of discipline will be given to the complainant and placed in his personal file. Appropriate steps may also be taken, with the approval of the victim of the false complaint, to correct any mistaken impression left by the complaint.

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