Policy 4.9 - Discrimination and Harassment in the Workplace

Effective Date: 01-July-94
Responsible Branch: Executive Branch

Management Services Volume Table of Contents | Amendment Log

Scope

This policy contains policies and procedures on discrimination and harassment in the workplace.

Policy

Harassment will not be tolerated in the Ministry of Forests, and will be dealt with expeditiously. Harassment violates the fundamental rights, dignity, and integrity of the individual. The Ministry of Forests, in cooperation with its unions, will promote a work environment that is free from discrimination and harassment and where all employees are treated with respect and dignity.

The objective of this policy is to prevent discrimination and harassment and to provide procedures for handling complaints and recommending discipline where discrimination or harassment is found to have occurred.

Protection against discrimination and harassment extends to incidents occurring at or away from the workplace, and during or outside working hours, provided the acts are committed within the course of the employment relationship.

Discrimination and Harassment

Discrimination and harassment relate to any of the prohibited grounds in the British Columbia Human Rights Act. Prohibited conduct ought reasonably be known to be unwelcome and may be verbal, non-verbal, physical, deliberate, unintended, or unsolicited. It may be one incident, or a series of incidents, depending on the context.

Employees have the right to employment without discrimination or harassment because of race, colour, ancestry, place of origin, religion, family status, marital status, physical disability, mental disability, sex, age, sexual orientation, political belief, and conviction for a criminal or summary offence unrelated to their employment.

Sexual Harassment

Sexual harassment is any unwelcome comment or conduct of a sexual nature that may detrimentally affect the work environment or lead to adverse job-related consequences for the victim of the harassment.

Sexual harassment includes, but is not limited to:

• a person in authority asking an employee for sexual favours in return for being hired or receiving promotions or other employment benefits
• sexual advances with actual or implied work-related consequences
• sexist comments or sexual invitations
• verbal abuse, intimidation, or threats of a sexual nature
• leering, staring, or making sexual gestures
• display of pornographic or other sexual materials
• offensive pictures, graffiti, cartoons, or sayings
• unwanted physical contact such as touching, patting, pinching,
• hugging
• physical assault of a sexual nature

Definitions

Employee: A person employed or appointed under Section 5 of the Public Service Act, or a person employed or appointed by the Lieutenant Governor in Council under the Public Service Act.

Employer: The Ministry of Forests

Complainant: An employee who has brought forward or filed a complaint under those procedures alleging that discrimination or harassment has occurred.

Respondent: An employee (or group of employees) who is alleged to have discriminated against or harassed the complainant.

Constituent Groups:

• British Columbia Government and Service Employees' Union
• Professional Employees' Association
• Excluded employees

Deputy Minister: Refers to the Deputy Minister to whom a written complaint under the formal component of these procedures may be sent and to whom the complainant and/or the respondent may report.

Investigator: An individual designated by the Deputy Minister to investigate formal complaints of discrimination and harassment.

Adjudicator: The designated individual(s) who has been mutually agreed to. Other adjudicators may be appointed with the agreement of the parties.

Union: The bargaining agent and constituent group for the bargaining unit to which the complainant or the respondent belongs.

Procedures

All those involved in the handling of a complaint under these procedures will hold in the strictest confidence all information of which they become aware. The parties recognize, however, that various officials of the constituent groups and the Ministry will be made aware of all or part of the proceeding on a need-to-know basis.

Informal Resolution

Employees who believe that they have a complaint of discrimination or harassment may approach their union representative, supervisor, or other contact person to discuss potential means of resolving a complaint and to request assistance in resolving the matter. If the matter is dealt with to the complainants satisfaction, it is deemed to be resolved.

If the matter is not resolved to the employees satisfaction, the employee will approach the first excluded level of management not involved in the matter within six months of the alleged occurrence for assistance in resolving the complaint.

The manager will investigate and take steps to resolve the complaint within 30 days of it being raised by the employee. The manager will discuss the proposed resolution with the complainant and the respondent.

The complainant and the respondent may have a union representative present if they are members of a bargaining unit, or if not, another representative may be present during these discussions.When the first excluded level of management is the respondent, the employee will approach the respondents supervisor.

Formal Resolution

If the resolution proposed as a result of the management investigation is not acceptable, the employee may refer the matter through the constituent groups in writing to the Deputy Minister, or his or her designate, within 30 days of receiving the managers response or when the response was due.

Employees who are not members of a bargaining unit may file a written complaint within 30 days directly with the Deputy Minister or they may seek assistance through the Ministers contact person in filing a complaint with the Deputy Minister or designate.

A written complaint will specify the details of the allegation(s) including:

• name, title, and Ministry of the respondent
• description of the action(s), conduct, events, or circumstances
• involved in the complaint
• the specific remedy sought to satisfy the complaint
• dates of incidents
• names of witnesses (if any)
• prior attempts to resolve (if any)

The Deputy Minister or designate will acknowledge, in writing, receipt of the written complaint, have the matter investigated, and take steps to resolve the matter.

The Unions and the employees involved will be advised in writing of the proposed resolution within 30 working days from the date the Deputy Minister receives the written complaint or a later date mutually agreed to by the constituent groups and the Ministry.

Adjudication

When the matter is not resolved following the formal investigation, the union may refer the matter to adjudication.

When a complaint has been filed at the adjudicative stage, an adjudicator will be appointed within 10 working days of receiving notice to proceed to adjudication.

The adjudication must be conducted in a manner consistent with the principles of natural justice, so as to give those involved a fair hearing. The adjudication must be held in private, and the Ministry has full standing.

The Adjudicators will determine their own procedures and may admit any evidence deemed necessary or appropriate, consistent with the principles of natural justice.

The Adjudicator may:

• make findings of fact
• decide if, on the facts, harassment has occurred
• attempt to mediate a resolution to the complaint
• make recommendations regarding resolution of the complaint, which may include discipline

The Adjudicator will forward the report and recommendations as expeditiously as possible to:

• the complainant
• the respondent
• the Deputy Minister
• the constituent groups

The decision as to whether or not discrimination or harassment has occurred is binding on the Ministry, the complainant, the respondent, and the constituent groups.

Implementation

The Deputy Minister will consider the decision and recommendations of the Adjudicator in determining what action should be taken respecting the complaint. The complainant, the respondent, and any other applicable party will be notified of the Deputy Ministers decision within five working days of receiving the Adjudicators report.

Disciplinary action taken by the Ministry, consistent with the recommendations of the Adjudicator, will be considered by all parties to be determinative of the complaint and will not form the basis of a grievance.

Disciplinary action taken by the Ministry which exceeds the recommendations of the Adjudicator may form the basis of a grievance which will be filed directly.

If the Ministry fails to act upon the recommendations of the Adjudicator, or if the action taken is not consistent with the recommendations, the Deputy Ministers decision may not be considered to be determinative of the complaint.

If the Adjudicator determines that discrimination or harassment has occurred, the Ministry must document the personnel file of the respondent accordingly.

Pending the determination of the complaint, the Deputy Minister may take interim measures to separate the employees concerned, if necessary. Any such action will not be deemed to be disciplinary in nature or seen as presumption of guilt or innocence. The complainant will not be relocated without his or her agreement.

Other Procedures

In circumstances where either the complainant or the respondent is a Deputy Minister, these procedures will apply. However, in these cases, the function of the Deputy Minister for the purpose of these procedures will be assumed by the Public Service Employee Relations Commission (PSERC).

Harassment does not include actions occasioned through exercising in good faith the Ministry's managerial/supervisory rights and responsibilities.

This policy does not preclude an employee from filing a complaint under Section 8 of the British Columbia Human Rights Act. However, an employee will not be entitled to duplication of process. An employee making a complaint of harassment must choose to direct a complaint to either the British Columbia Council of Human Rights or to the formal process specified in the policy and procedures. In either event, a complaint of discrimination or harassment shall not form the basis of a grievance.

An employee who files a written complaint which would be seen by a reasonable person to be frivolous, vindictive, or vexatious may be subject to disciplinary action. Disciplinary action taken may be grieved pursuant to the appropriate collective agreement.

References

• British Columbia Human Rights Act
• Public Service Act