What responsibilities does a federal employer have to appoint a competent person to investigate a complaint of work place violence under the Canada Labour Code? The Federal Court of Appeal recently released Canada (Attorney General) v. Public Service Alliance of Canada (PSAC), a decision which elaborates on this duty.
In PSAC, the court was faced with a situation where a poultry inspector had made a claim regarding favouritism, unfair treatment, humiliation, and disrespectful treatment in the workplace. The employer looked into the matter but did not select an impartial, competent person as required by Part XX of the Canada Occupational Health and Safety Regulations, entitled Violence Prevention in the Workplace. The employer explained that because their preliminary fact-finding determined that no workplace violence had occurred, they did not believe they had to appoint an impartial, competent person.
The Federal Court of Appeal agreed with the lower court that the Appeals Officer was wrong to allow the employer to assess this complaint before appointing a competent person to investigate impartially. While the employer may be able to screen clearly vexatious or frivolous complaints, this complaint was not clearly vexatious or frivolous. As such, a competent person should have been appointed to investigate in accordance with Part XX of the Canada Occupational Health and Safety Regulations and make a decision regarding whether there had been workplace violence.
Ultimately, the Federal Court of Appeal held that unless it is "plain and obvious" that the allegations do not relate to work place violence, a competent person must be appointed to investigate. As such, employers should exercise caution in screening out complaints of workplace violence.
Written with the assistance of Kira Misiewicz, articling student.
Norton Rose Fulbright Canada LLP
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