Harassment and Discrimination Procedure for Employees

1. Purpose

Loyalist College is committed to fostering an environment in which all individuals are treated with respect and dignity and endeavours to preserve the sense of worth and belonging of all college community members. The college is committed to ensuring that discrimination and harassment are not tolerated and are addressed promptly by ensuring that strong, effective, and fair expectations and complaint procedures are in place.

The college is committed to preventing, identifying, and correcting conduct that would result, or has resulted, in harassment or discrimination. The college will enforce the rights and responsibilities of the Ontario Human Rights Code (the “Code”), the provisions of the Occupational Health & Safety Act (OHSA) and other provincial legislation, in conjunction with the applicable collective agreement provisions, relevant college policies and HR 100 Employee Code of Conduct.

The purpose of this procedure is to provide transparent, accessible, and formal structures to promote compliance with human rights and workplace safety law and principles, including the college’s complaint mechanisms, to foster a culture of accountability. The following procedures provide guidelines for the measures to be taken by Loyalist College and college community members to address and resolve issues of harassment and/or discrimination.

The college may take actions which diverge from the processes outlined within this policy and procedure when:

• the safety of college community members is deemed to be at risk, or,
• an anonymous complaint has been made, or,
• a violation is deemed to be so serious that immediate action is required, or,
• other action is necessary to ensure that the college meets its legal obligations.

2. Application

This procedure applies to incidents of harassment and/or discrimination that involves an employee or volunteer as either the complainant or respondent. If the complainant or respondent is a student contact the Student Conduct and Accountability Office and refer to ADMIN 127 Harassment and Discrimination Procedure for Students.

If a contractor working with Loyalist College has been involved in an incident of harassment and discrimination, they should contact their manager who will contact either the Student Conduct and Accountability Office or Human Resources. If an incident of harassment or discrimination does not involve a student, employee, contractor or volunteer, contact Loyalist College Security.

An incident of harassment or discrimination may involve various members of the college community.  As a result, the execution of this procedure may overlap with ADMIN 127 Harassment and Discrimination Procedure for Students. The Student Conduct and Accountability Office, Human Resources and Loyalist College Security will work together to support all parties to ensure procedural fairness and a timely investigation process.

Sexual violence and sexual harassment are covered under ADMIN 125 Responding to Sexual Assault and Sexualized Violence.

All college-sanctioned activities and functions are covered by this procedure. This procedure extends beyond the physical boundaries of Loyalist College, regardless of whether they take place on or off college premises. It applies to virtual harassment by individuals who communicate harm indirectly and directly by means of electronic devices during and outside business hours. It may also apply if harassment and discrimination occur outside the workplace but have a direct link to, and/or an adverse effect on, employee relationships in the workplace.

The associated policy and this procedure do not intend to prevent an individual from accessing or utilizing alternate procedures, such as those found in a collective agreement or an external legal proceeding. The processes for addressing discrimination and harassment outlined within the Academic Employees Collective Bargaining Agreement, the Support Staff Collective Agreement, or the Terms and Conditions for Administrative Staff cannot be overridden for unionized employees. In such cases, a complaint under this procedure may be suspended until another procedure has been completed, or it may be dismissed altogether.

3. Roles and Responsibilities

All Employees and College Community Members

• Comply with appropriate conduct expectations and refrain from engaging in any behaviour that constitutes hate, discrimination, harassment, or violence.
• Treat others with a professional and respectful manner to effectively contribute to a positive and inclusive environment.
• Attend training and information sessions required by the college to reduce incidents of harassment and discrimination.
• Report instances of harassment and discrimination experienced or witnessed when necessary.
• Cooperate and participate with an inquiry or investigation in good faith while respecting the privacy of others involved and the confidentiality requirements related to the process.

All Supervisors

• Foster a harassment and discrimination-free work environment and model appropriate behaviour.
• Communicate and review this procedure and its associated policy with those individuals they supervise or manage, if necessary.
• Encourage individuals to report complaints or incidents of workplace discrimination, harassment, and violence.
• Address situations or instances of harassment, bullying, and discrimination immediately and with sensitivity once the manager has become aware of them, whether a harassment or discrimination complaint has been made.
• Promptly respond to and report all complaints or incidents of workplace discrimination, harassment, and violence in a professional manner, appropriate to the circumstances.

The Joint Health and Safety Committee

• Consult in developing and maintaining the workplace harassment program, inclusive of feedback regarding the development and implementation of this policy and procedure.

The Human Resources Department

• Administer this procedure and its associated policy and provide employees with information and guidance regarding the policy and resolution procedures to make informed choices.
• Receive and respond to reports of employee behaviours that are contrary to the policy. This includes allegations of discriminatory, bullying or harassing behaviours; allegations of reprisal or retaliation; and frivolous or bad-faith complaints.
• Recommend appropriate corrective or disciplinary action to be taken by the college.
• Facilitate resolutions and/or disciplinary actions.
• Facilitate the annual review of the policy and reporting requirements to ensure compliance with legislation, including the posting of the policy in physical spaces and virtual platforms.

The Executive Director, Indigenous Reconciliation and Initiatives (or designate)

• Work collaboratively to ensure the successful administration of this procedure and its associated policy and provide college community members with information and guidance required about the policy and resolution procedures to make informed choices. 
• Provide Indigenous staff and students with cultural supports as requested by either party. 
• Recommend appropriate resolutions and/or disciplinary action.
• Facilitate education programs and other strategies to promote Indigenous-specific awareness of the issues of harassment and/or discrimination. 

The President

• Receive and respond to reports of employee behaviours that are contrary to this procedure and its associated policy where an employee seeks to provide a complaint in instances where the respondent is a complainant’s supervisor, or when a complainant wishes to ensure the formal complaint is made to an impartial party.
• Oversee and preside over the appeals process, should an appeal be made under this policy.

4. Responding to Harassment and Discrimination

The college has a responsibility to address complaints of discrimination and harassment, to provide options for resolution, and to provide support to all community members who engage in these processes. All concerns and complaints related to discrimination and harassment will be addressed in a manner that is timely, fair, and confidential.

Every situation is unique in terms of the circumstances surrounding incidents of harassment and/or discrimination and the needs and interests of those involved. Therefore, the college provides multiple, flexible, and timely resolution options for addressing and resolving complaints of harassment and/or discrimination or resolving conflict prior to their escalation. By providing multiple options for resolution, the individuals involved may choose the course of action that will best meet their needs and the specific situation.

If, at any stage in this procedure, the matter is dealt with to the satisfaction of the parties involved, the matter will be considered resolved.

4.1 College Support Provisions for Individuals

The college acknowledges that participation in the policy may be difficult for complainants, respondents, and witnesses. In this event, the college will make its best efforts to identify available support while maintaining procedural fairness and meeting all applicable legal obligations. Support may be provided before, during, and/or after a process described in the policy and may include accommodation under the Ontario Human Rights Code or other modifications to the process. While the college will collaborate with an individual to determine their need for support, support is provided at the college’s discretion.

4.2 Support Persons

A support person is an individual that accompanies a complainant, respondent, or witness to investigation meetings. Their purpose is to provide emotional support. They may take notes on behalf of the person they accompany. They are not permitted to question or make comments during the proceedings. Possible types of support persons include but are not limited to interpreters, individuals that assist people with disabilities, elders or knowledge keepers (including individuals from the Tsi Titewaya’taró:roks Indigenous Centre), friends, and relatives. Support persons are commonly not legal advisors or lawyers and should not be anyone who has a conflict of interest with the situation. 

4.3 Union Representation

Unionized employees have the right to union representation at all stages of the procedure. If both the respondent and complainant are from the same union, the union will take appropriate measures to ensure both members receive separate and confidential union representation.

4.4 Interim Measures

Upon receiving a complaint under the policy, the college will assess whether measures are required to support the parties and uphold the integrity of the process. The college may also take proactive steps to prevent reprisals by offering appropriate supports or modifications, such as a no contact order, remote learning or work arrangements, work assignment adjustments, or campus escort services.

The rights and privileges of a respondent may be restricted by the college before it makes a final determination about the alleged misconduct with the use of interim measures. For example, a respondent may be restricted from entering certain parts of campus, or a respondent may be placed on an administrative leave during an investigation.

Interim measures are imposed to protect the interests of both parties and imposed only as necessary. The college will take steps to minimize the impact of interim measures on respondents. Respondents may ask the college to review a decision to impose interim measures, but only to address the impact of the imposed measure and the preference of other alternatives.

4.5 Withdrawal of a Complaint

The complainant may withdraw the complaint at any stage of the process.

If the complainant decides not to pursue their complaint through the procedures outlined, the college maintains the right to determine that the matter should continue to be pursued and, if appropriate, addressed. This is important to alleviate a poisonous work and learning environment and to respect the college’s legal responsibilities. The college will determine the appropriate process to pursue the matter.

Situations where the college may decide to continue action may include, but are not limited to:

• Instances of a pattern of concerns or complaints which may suggest the existence of a problem that has not been adequately or effectively addressed.
• Instances where there is reason to believe that a systemic problem exists which causes, encourages, or contributes to harassment or discrimination.

5. Procedure

Step One: Intake

If an incident of harassment and/or discrimination involves an employee, the intake process will be carried out by the Human Resources Department.  In instances where an employee is reporting a complaint and the respondent is a complainant’s supervisor, or when a complainant wishes to ensure the formal complaint is made to an impartial party, the complaint may be made to the Vice-President, Human Resources. In instances where the complaint is against a Human Resources employee, the complaint may be made to the Office of the President.

During the intake process, the individual responsible for the intake will meet with the complainant to:

• record the concerns and allegations and prepare a statement of complaint using Appendix A Formal Complaint Form.
• ensure the complainant fully understands the procedures of the policy, the multiple resolution options available within the broader categories of informal and formal resolution, and what may result from the decision to file a complaint.
• ensure the complainant fully understands the necessity and limitations of confidentiality within the process. When making a report to any college office, individuals will receive clear and transparent information about the levels of, and limits to, confidentiality that apply.
• advise of their right to procedural fairness, including the right to file a written complaint; the right to be informed of the complaint and provided an opportunity to respond to the allegations; the availability of counselling or additional resources as applicable; and the right to be accompanied by a support person, as defined by the policy.

The formal complaint must include the nature of the allegations, the name of the respondent (if known), the relationship to the respondent, as well as the location(s), the date(s), and a detailed description of any relevant incidents. The formal complaint must include any actions taken to date, any witnesses, and any other relevant information regarding the instance(s). This information will be detailed within Appendix A Formal Complaint Form and the information will be collected in a confidential manner.

The college will make best efforts to limit the number of times a complainant will need to repeat their allegations against a respondent.

Step Two: Informal Resolution

After the completion of the intake process, the individual responsible for the intake may meet with the parties and determine whether informal resolution may be an option.

Informal resolution provides an opportunity for the parties involved in a complaint under the policy to explore methods of resolution other than a formal investigation. Wherever possible and appropriate, self-managed or alternative resolution of complaints will be attempted before a formal investigation is initiated. These processes may utilize a direct approach, education, a facilitated approach, or a combination of a variety of informal resolution processes.

If both parties agree, Human Resources will collaborate with the parties to determine the appropriate framework for informal resolution.

Either party may end their participation in informal resolution during the process at their sole discretion. The college may end informal resolution on reasonable grounds (i.e., if resolution does not appear possible, if the parties stop participating in good faith, etc.).

Step Three: Mediation

The Human Resources Department may offer mediation, if appropriate for the situation and mutually agreeable to both the complainant and the respondent.

Should the parties engage in mediation, the complainant and the respondent must have resolved the situation within 20 business days, or the mediation will be suspended.

Step Four: Formal Investigation

An investigation into all instances and complaints of harassment and discrimination that the college is made aware of will be conducted in some form, appropriate to the specific circumstances. If the parties do not agree to attempt an informal resolution or mediation, or if informal resolution or mediation do not resolve the matter, the college will initiate a formal investigation of the complaint and gather more information, where appropriate.

The college will inform the complainant and the respondent that they have the option of being accompanied during all investigation interviews by union representation (if a unionized employee) or other support person.

The complaint investigation will be timely, fair, and aim to address all relevant issues. The length of time an investigation requires will depend on the nature of the circumstances and the complexity of the incident or complaint. The college recognizes that these processes may be stressful for the individuals involved, and as such, investigations will be conducted as quickly as possible while ensuring sufficient time for a complete, thorough, and fair investigation. An investigation must be, at maximum, completed within 90 calendar days (or less) unless there are extenuating circumstances warranting a longer investigation. Throughout the investigation, the complainant and respondent will be kept informed about the status of the investigation.

Investigators

All investigators, whether internal or external to the college, will have training and expertise in the areas of discrimination and harassment and follow the mandate and scope of the investigation, as determined by the college.

A neutral, impartial person will conduct the investigation and be assigned based on the individuals involved and the specific situation. The investigator will not have been involved in the incident under investigation or under the direct authority of the respondent. Investigations may also be undertaken by an external investigator engaged by Loyalist College, as assigned by the college. Any investigation of a complaint made against Human Resources, or the College Executive Team will be conducted by an external investigator.

The investigator will provide the college with a report and recommendations to conclude the investigation, which will be used to inform the college’s decision.

Step Five: Notification of Decision

Within 10 working days of the decision being reached, the complainant and the respondent will be provided with a decision.

Complainants and respondents involved with an investigation will be provided with an investigation closure letter at the conclusion of the college’s internal or external investigation. The closure letter will include a written summary of the investigator’s findings and the action, if any, relating directly to that party that the college will be taking to bring closure to the complaint. The complainant has the right to know that corrective action has been taken because of the report, but not the specifics of any disciplinary action.

If the complainant or respondent is not an employee or student, the college may elect not to provide an investigation closure letter to that individual.

Step Six: Resolution

Measures taken to resolve a complaint of harassment or discrimination are intended to be corrective and preventative in nature and adapted to the specific situation.

If a complaint can be resolved through a restoration or mediation process, the individuals responsible for the intake and the investigation will meet with the parties to explore strategies to restore the relationship between the parties, if applicable. The restorative process should be no longer than 12 months from the time the complaint was received, and may include training, additional measures such as prohibited or restricted access to college locations, and/or disciplinary measures such as a reprimand or suspension.

Employees who are found to have harassed or discriminated against another individual, who have created a poisoned environment, or supervisors who do not act properly to end harassment or discrimination may be subject to disciplinary action, up to and including termination.

6. Appealing the Outcome of an Investigation

A complainant or respondent may appeal the outcome of an investigation to the President and CEO in writing within 10 working days of the final decision being communicated. Appeals will only be considered on the following grounds:

• a significant error occurred where the procedures outlined in this Policy/Procedure were not followed correctly. Such errors must be substantive in nature and ones which could have affected the outcome of a complaint. Mere clerical errors will not normally constitute a significant error; or
• there is significant new evidence that was not available at the time of the decision, and which has the potential to change the original decision. Failure to present evidence that was available at the time of the original review but not presented does not constitute new evidence.

Any disciplinary action taken because of harassment and/or discrimination may be subject to grievance under the relevant collective agreement or appealed to the President and CEO. An appeal to the President is not allowed when an employee elects to proceed under the grievance procedure.

Appeals to the President should occur within ten college business days of the decision being communicated to the complainant and/or the respondent and be in writing. If either party appeals, a copy of the submission will be given to the opposing party to allow an opportunity to respond in writing within five working days.

The President (or their designate) will review the investigation report, the decision, the appeal submission and response. If the President or designate decides to hold a hearing, they will advise the parties of a date for an appeal hearing to take place. That hearing will be presided over by the President or designate. The procedure at this hearing is meant to be informal and the President or designate will determine the procedure to be followed at the hearing. Otherwise, the President or designate will make a final decision based on the Investigator’s report, the appeal submission and the response.

The President or designate will provide a written decision with reasons to the parties as soon as reasonably possible. The parties will also be informed of any remedial action that will be taken, if appropriate. This decision is final and cannot be appealed.

7. Related Documents

• ADMIN 127 Harassment and Discrimination Policy
• ADMIN 127 Harassment and Discrimination Procedure for Students
• ADMIN 127 Appendix (A) Formal Complaint Form
• Academic Employees Collective Bargaining Agreement
• ADMIN 125 Responding to Sexual Assault and Sexualized Violence
• HR 100 Employee Code of Conduct
• Access to Information and Protection of Privacy Policy
• Policy Statement on Upholding Free Speech
• Student Code of Conduct
• Support Staff Collective Agreement
• Terms and Conditions for Administrative Staff

10. References

• Freedom of Information and Protection of Privacy Act
• Human Rights Code
• Minister’s Directive on Anti-Racism/Anti-Hate
• Occupational Health and Safety Act