Staff Report #1 – Harassment and Discrimination – Third Party Assessment

Staff Report #1

February 26, 2020

To All Commissioners

Re: Harassment and Discrimination – Third Party Assessment

Recommendation

That the Commission APPROVE the Human Rights and Diversity Policy (Anti-Harassment, Anti-Sexual Harassment and Anti-Discrimination) and Mutual Respect in the Workplace Policy as set out in Enclosure I, with an effective date of May 1, 2020.

Background

In April 2018, the Commission directed administration to utilize a third party to implement a process to:

  1. Conduct an intake of complaints and, where appropriate, conduct investigations of any individual harassment and/or discrimination allegations; and
  2. Conduct an assessment of LTC’s program and practices relating to harassment and discrimination. This includes getting feedback in a variety of ways from employees on their experiences relating to the program and a top to bottom review of policies.

The final summary report, including findings and recommendations, was tabled with the Commission at the September 25, 2019 meeting (see Staff Report #2, dated September 25, 2019). The recommendations stemming from the report are set out in the table below, with updated completion dates for each recommendation included.

Recommendations Next Steps Anticipated Completion
1. Share the process results with employees Report has been shared. Communications with respect to follow up on remaining recommendations will be ongoing Ongoing
2. Complete an internal policy review Forward to Joint Occupational Health & Safety Committee Complete – See Staff Report #1 dated February 26, 2020
3. Continue to make the Expect Respect campaign a priority. Included on Work Program Ongoing
4. Ensure Clear Roles, Responsibilities and Communication re the Investigation Process Forward to Joint Occupational Health & Safety Committee Complete – See Staff Report #1 dated February 26, 2020
5. Consider clarifications to the current investigation processes Forward to Joint Occupational Health & Safety Committee Complete – See Staff Report #1 dated February 26, 2020
6. Additional training for management Refer to 2020 Work Program TBD – 2020
7. Transparency of investigations 2019 Report has been shared

Annual reports will be shared publicly going forward

 Ongoing – See Staff Report #4 dated February 26, 2020
8. Review of customer contact management process Forward to working group to undertake review 1st Qtr 2020

As noted in the table above, the remainder of this report will address recommendations 2, 4 and 5, each of which is described in detail in the report below.

Recommendation 2 – Complete an Internal Policy Review

Consistent with the Summary Report recommendation, a Working Group of the Joint Health and Safety Committee comprised of committee members, including the ATU Local 741 President and Director of Human Resources conducted an internal policy review of both LTC’s Human Rights and Diversity Policy

(Anti-Harassment, Anti-Sexual Harassment and Anti-Discrimination) and LTC’s Mutual Respect in the Workplace Policy as well as the related Complaint Procedures (which include the investigative process) associated with both. Consistent with the Summary Report Recommendations, attention was directed at ensuring a clear distinction between the two LTC policies and the interplay between the Complaint Procedures and where confusion may be noted, simplifying same.

As a result of the review, the Working Group recommended a number of changes to the policies and related complaint procedures to the Joint Occupational Health and Safety Committee (JHSC), all of which were approved by the Committee. The General Manager subsequently approved the recommendations. The following provides a summary of the Working Group’s recommendations.

  1. Expand the definition section of the LTC’s Human Rights and Diversity Policy (Anti-Harassment, Anti-Sexual Harassment and Anti-Discrimination) to include additional definitions for “poisoned work environment” and “reprisal”, as well as provide additional clarification of other definitions and added the overall definition section to LTC’s Mutual Respect in the Workplace Policy.
  1. Amalgamate the Complaint Procedures (which includes the investigation process) into one overall Complaint Procedure for both respective Policies, ensuring a more consistent and concise procedures.
  1. Amend the Complaint Procedure to highlight the two distinct differences in the Complaint Procedure for the respective Policies:
  1. Human Rights complaints are handled through LTC’s Human Resources department, specifically the Manager of Human Resources or Director and then forwarded to the Department Director for approval.
  2. Mutual Respect in the Workplace complaints are handled through the Complainants respective Department Manager and forwarded to the respective Department Director for approval.
  3. If a Complainant or Respondent elects to pursue an appeal of the findings of a related investigation, the appeal is directed to the General Manager.
  1. Create a flow-chart depicting the Complaint Procedure in an easy to understand, step by step manner that includes what an employee can expect when involved in an investigation.

Recommendation 4 – Ensure Clear Roles, Responsibilities and Communication re the Investigation Process

The Working Group split this recommendation into two distinct parts, with the first being to ensure that all Managers and Investigators are clear with respect to their roles and responsibilities relating to the formal investigation processes. The review findings and recommendations stemming from this part of the review are set out below noting the Working Group recommendations are underlined.

  1. Ensuring all Managers and Investigators are clear with respect to their roles and responsibilities relating to the formal investigation processes.
  1. In early 2019, management staff and the ATU Local 741 Executive members jointly completed a full day “Workplace Investigation” training program for the roles and responsibilities of an investigator. The training was conducted by an external consultant, with expertise in the subject matter. Key aspects of the training focused on characteristics of a competent investigator, steps in an investigation, interviewer skills, questioning skills (i.e. what not to ask), active listening, and consideration of evidence and credibility. Workplace Investigation training is also outlined in the Collective Agreement, and same is to be provided to ATU Local 741 Executives once every three years. The Working Group was satisfied with the training provided and felt that all investigators were well versed concerning their roles and responsibilities. Per the current process, and as will be continued, any management member or ATU Local 741 Executive Member must complete this requisite training prior to being appointed as an Investigator.
  2. Historically, the Workplace Investigative Training had been facilitated in-house, via the Director of Human Resources and ATU Local 741 trained Executive Member. The Working Group recommended this practice be discontinued, noting training will be held via the external consultant with expertise in the area of study.
  1. The second part of this review called for ensuring employees involved in an investigative process are provided with regular communications regarding the status of same, including how and when their issues will be addressed. The Working Group reviewed the current process and communication mechanisms in place and found them to be satisfactory. The Working Group delved into whether employees fully understand the Complaint Procedure and training related to same and what measures the employer has taken to ensure same, with findings as follows:
  1. The Policies and Complaint Procedure are outlined in full in LTC’s Employee Handbook distributed to all employees as well as a brochure on same. In addition, through the on-boarding process, all new employee receives the related information.
  2. All employees pre-2015, received Human Rights & Diversity and Mutual Respect in the Workplace training as part of their on-boarding, including refresher training on same during their employment. In 2015 the Human Rights & Diversity and Mutual Respect in the Workplace training module was significantly re-developed and rolled out. To date, all employees through their on-boarding process have received this updated training module, in addition, all employees in Fleet and Facilities, Inspectors, Dispatch, Ticket Office, management and administration have received the new training module. In 2019, the training module was rolled out to the Operator group (hired before 2015), and it is expected that the entire Operator group will have received the updated training by mid- 2021. The Working Group has recommended that the Complaint Procedure be modified to include a defined term of retraining that should not exceed eight years, noting any significant modifications and/or updates will be dealt with accordingly.
  3. In an effort to ensure the employees’ understanding of the Complaint Procedure, the Working Group created a flow-chart depicting what an employee can expect when involved in an investigation. Subsequent to Commission approval of the policies, posters will be created for display on corporate bulletin boards. In addition to the flow-chart, the Working Group created an accompanying list of frequently asked questions that can be amended from time to time as questions from employees arise. Managers will also be reminded to review with employees the respective process and what they can expect.
    In February 2019, Managers were advised that in the case where an employee raises a concern that could be related to either of the policies, a follow-up is required (i.e. close the loop.) In cases where an employee indicates something along the lines “just wanted to tell you, but don’t want it investigated.” they will now be advised that once management is aware of a concern, it will be investigated. The Working Group has recommended the respective Complainant Procedure be updated to include same.
  4. The Working Group reviewed actual communications distributed to those employees involved in investigations. Standard letters are used to advise both the Complainant and Respondent of receipt of a complaint. The review found that the letters do not contain any warning or communication that suggests a conclusion about the complaint, they do contain that he/she is named in a complaint or confirm he/she filed same, general nature of the complaint, who is investigating the complaint, detailing alleged violation with the related policy, date and time of the meeting, and reminder to keep the issue confidential. Further, if there are any unforeseen delays in an investigation, those involved receive a letter stating same, so that they know when they can expect to hear from the Investigators. The Working Group recommended no change to the communication process nor materials.

The aforementioned recommendations were approved by the Joint Occupational Health and Safety Committee and subsequently approved by the General Manager.

Recommendation 5 – Consider Clarifications with Respect to the Investigation Process

The Working Group also reviewed the investigation processes, as outlined in the Complaint Procedure to ensure each step in the process was clearly articulated and easy for employees to understand. The recommendations stemming from this review are intended to provide employees with increased clarity as well as confidence in the process and are set out below:

  1. The Working Group reviewed training records to ensure that all investigators had received appropriate training. As previously noted, only those Managers and ATU Local 741 Executive Members who have completed the requisite training can act as Co-Investigators. No changes were recommended to the Complaint Procedure.
  1. A specific piece of Recommendation 5 referenced the need to ensure that appointed investigators can be neutral and do not have a real or perceived conflict of interest based on a personal or reporting relationship with one or both of the parties. While the existing process included the ability to request a different investigator, it lacked clarity both with respect to the steps involved as well as the expectations to demonstrate the perceived conflict of interest. The Working Group has recommended a new section be added to the Complaint Procedure for “Appointment of Investigator(s)”, detailing an objection process.
  1. Recommendation 5 also included specific reference to the need to allow bargaining unit employees the option of having union representation during an investigation. Again, while union representation has been an informal option since the inception of the procedures, it was not clearly delineated in the Procedures. The Working Group has recommended the Complaint Procedure be updated to clearly articulate that union representation is allowed for bargaining unit employees.
  1. Comments gathered during the third party review indicated there was a need to ensure that co-investigators are present for all investigation interviews. The Working Group reviewed past and current practice and found that, in all cases, aside from those on a contractual basis (per the Collective Agreement) co-investigators attend all investigative meetings. As such, no changes were recommended to the Complaint Procedure.
  1. The recommendation also suggested the need to provide complainants and respondents with the opportunity to review and respond to relevant evidence during the investigative process before findings being made would be beneficial to the overall process and employee’s trust in same. The Working Group has recommended that the Complaint Procedure be updated to include this additional step.
  1. The final piece to recommendation 5 suggested amending the appeal process to ensure that the party signing off on the initial investigation is not the one hearing the appeal. The Working Group concurred with this suggestion and as such, has recommended that, while the appeal process remains unchanged, the party signing off on an investigation will not be the one hearing the appeal.

The aforementioned recommendations were approved by the Joint Occupational Health and Safety Committee and subsequently approved by the General Manager.

Next Steps

As indicated earlier in the report, all of the recommendations from the Working Group were approved by the Joint Occupational Health and Safety Committee and subsequently the General Manager. Those recommendations that require amendments to either the LTC’s Human Rights and Diversity Policy (Anti-Harassment, Anti-Sexual Harassment and Anti-Discrimination) or LTC’s Mutual Respect in the Workplace Policy have been included in the revised policies set out in Enclosure I and are recommended for approval by the Commission.

The recommendations dealing with the Complaint Procedure relating to the two aforementioned Policies have been included in the revised Procedure set out in Enclosure II. Subsequent to approval of the Policies, posters and other materials designed to assist in communicating the changes to all employees will be finalized.

If approved, the above-noted Policies and related Complaint Procedure amendments will take effect on May 1, 2020. This effective date will provide the opportunity to ensure that all Managers and ATU Local 741 Executive members can partake in a training session to review the updates to ensure communications are clear, concise and consistent, as well as to update the related information that is included in all employee handbooks, and additional materials will be created to ensure that changes are clearly articulated to the employee group. A communications campaign will be developed and implemented to ensure that external stakeholders including LTC customers are aware of the policies and the expectations associated with same.

Enclosures

I – Draft Human Rights and Diversity Policy and Mutual Respect in the Workplace Policy

II – Amended Complaint Procedure

Recommended by:

Joanne Galloway, Director of Human Resources

Concurred in by:

Kelly S. Paleczny, General Manager