Health and Safety regulations require person investigating workplace violence complaint must be approved by complainant as impartial
The Federal Court has held that a manager was not a "competent person" to conduct a workplace harassment investigation under the Canada Labour Code because the employee who filed the complaint had not agreed that the manager was an "impartial party."
In December 2011, an employee of the Canadian Food Inspection Agency (CFIA) filed a written complaint alleging "miscommunication, favouritism, humiliation, unfair treatment and a lack of respect" on the part of his supervisor.
The CFIA assigned a manager to undertake a "fact-finding" review of the concerns raised in the complaint. The manager conducted internal investigations and concluded that there were communication issues and unresolved tension, but no evidence of harassment.
The employee contacted a federal Health and Safety Officer, alleging that the manager was not sufficiently impartial to conduct an investigation. The officer issued a direction requiring the CFIA to appoint an impartial person to investigate the complaint pursuant to the Canada Labour Code. The CFIA appealed that direction to an Appeals Officer of the Occupational Health and Safety Tribunal of Canada (who sided with the CFIA), and the employee then appealed to the Federal Court.
The court noted that s. 20.9 of Part XX to the Canada Occupational Health and Safety Regulations under the Canada Labour Code sets out procedural obligations of an employer if it receives a complaint of "workplace violence." The court held that "harassment may constitute workplace violence, depending on the circumstances." The court stated that the alleged harassment in this case could constitute "workplace violence" if after a proper investigation by a competent person it is determined that the harassment could reasonably be expected to cause harm or illness to the employee. Workplace violence is defined in that Regulation as, "any action, conduct, threat or gesture of a person towards an employee in their work place that can reasonably be expected to cause harm, injury or illness to that employee."
The court noted that under the workplace violence provisions of the regulation, a person is a "competent person" to conduct a workplace violence investigation if he or she is "impartial and is seen by the parties to be impartial" and has the necessary knowledge, training and experience.
In this case, the employee who filed the complaint did not agree that the manager was impartial. The court stated:
"What the employer did here was have the Regional Director, Mr. Schmidt, not only institute a pre-screening and fact finding exercise to determine the nature of the complaint and attempt to facilitate mediation, but also conduct a full investigation of the complaint, acting as a competent person under section 20.9(3). In his report, Mr. Schmidt mentions ‘investigation’ eight times and refers to his review of the evidence before him. He was not competent to do so, given there was no agreement that he was an impartial party by the employee and therefore had no authority to conduct any investigation, once the allegation of work place violence was unresolved at the pre-screening stage and still a live issue between the parties."
As such, the manager’s investigation was essentially unusable, and the court referred the matter back to the Appeals Officer for re-determination of the issues in accordance with the court’s decision.
This decision shows the importance of employers – at least federally-regulated employers who are subject to the Canada Labour Code -- of strictly complying with the workplace violence and harassment procedures set out in legislation or regulations.
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