Employee Sexual Misconduct Policy

This policy is prepared in accordance with sections 32.0.1 and 32.1 of the Ontario Career Colleges Act, 2005 and serves as the Employee Sexual Misconduct Policy for Durham Truck & Forklift Driving School Ltd.

Definitions

This policy applies to sexual misconduct involving a student enrolled at Durham Truck & Forklift Driving School Ltd. and applies to employees and includes faculty, staff, administrators, contractors and volunteers of Durham Truck & Forklift Driving School Ltd.

Actions that constitute sexual misconduct include, but are not limited to physical, verbal, non-verbal, and/or written acts, including comments, jokes, gestures, the posting of images, sexual advances, the offering of sexual incentives, and the threat of consequences for the refusal of sexual advances. It involves comments or behaviour of a sexual nature that another person may find offensive.

Misconduct includes:

  1. physical sexual relations with the student, touching of a sexual nature of the student or behaviour or remarks of a sexual nature toward the student by an employee of Durham Truck & Forklift Driving School Ltd. where:
    • the act constitutes an offence under the Criminal Code (Canada),
    • the act infringes the right of the student under clause 7 (3) (a) of the Human Rights Code to be free from a sexual solicitation or advance, or
  2. any conduct by an employee of Durham Truck & Forklift Driving School that infringes the right of the student under clause 7 (3) (b) of the Human Rights Code to be free from a reprisal or threat of

reprisal for the rejection of a sexual solicitation or advance. (“inconduite sexuelle”) 2022, c. 22, Sched. 2, s. 1.

Discharge or discipline

  • If an employee of Durham Truck & Forklift Driving School commits an act of sexual misconduct toward a student enrolled at Durham Truck & Forklift Driving School Ltd., the school will discharge or discipline the employee for that act, and,
    • the discharge or disciplinary measure is deemed to be for just cause for all purposes;
    • the employee is not entitled to notice of termination or termination pay or any other compensation or restitution as a result of the discharge or disciplinary measure; and
    • despite subsection 48 (17) of the Labour Relations Act, 1995, and despite any provision of a collective agreement or employment contract specifying a penalty for the infraction, no

arbitrator, arbitration board or other adjudicator shall substitute any other penalty for the discharge or disciplinary measure imposed by Durham Truck & Forklift Driving School Ltd. 2022,

  1. 22, Sched. 2, s. 1.

Disciplinary actions may include, but are not limited to, suspension from duties, disciplinary letter or letter of expectations, placement of certain restrictions on the employee’s ability to access certain premises or facilities; and/or any other actions that may be appropriate in the circumstances.

 

No re-employment

  • If an employee of Durham Truck & Forklift Driving School commits an act of sexual misconduct toward a student enrolled at the school and the school discharges the employee for that act or the

employee resigns from their employment, the school shall not subsequently re-employ the employee. 2022, c. 22, Sched. 2, s. 1.

  • If Durham Truck & Forklift Driving School determines that it has re-employed an individual

contrary to subsection (3), the school shall discharge the employee, and clauses (2) (a) to (c) shall apply to the discharge. 2022, c. 22, Sched. 2, s. 1.

Agreement

  • Subject to subsection (6), an agreement between Durham Truck & Forklift Driving School and any person, including a collective agreement or an agreement settling existing or contemplated litigation, that is entered into on or after the day section 1 of Schedule 2 to the Strengthening Post-secondary Institutions and Students Act, 2022 comes into force, shall not contain any term that, directly or

indirectly, prohibits Durham Truck & Forklift Driving School Ltd. or any person related to Durham Truck & Forklift Driving School Ltd. from disclosing that an allegation or complaint has been made that an

employee of Durham Truck & Forklift Driving School Ltd. committed an act of sexual misconduct toward a student of Durham Truck & Forklift Driving School Ltd., and any such term that is included in an

agreement is void. 2022, c. 22, Sched. 2, s. 1.

Exception

  • Durham Truck & Forklift Driving School may enter into an agreement that contains a term described in subsection (5) if the student requests that the school do so, provided that,
    • the student has had a reasonable opportunity to receive independent legal advice;
    • there have been no undue attempts to influence the student with respect to the request;
    • the agreement includes an opportunity for the student to decide to waive their own confidentiality in the future and the process for doing so; and
    • the agreement is of a set and limited 2022, c. 22, Sched. 2, s. 1.

Contrary term, rule, etc.

  • Subsections (2) to (6) apply despite any contrary term in an employment contract or collective agreement, or any contrary rule or principle of common law or equity. 2022, c. 22, 2, s. 1.
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