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
Norton Rose Fulbright Canada LLP
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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