The Canadian law on workplace violence and harassment continues
to develop, particularly in relation to the duty to investigate.
Employers should take note of the legislative requirements in the
jurisdictions in which they operate. Recently, the Federal Court of
Appeal ruled on the issue of when federal employers must appoint an
impartial investigator under the Canada Labour
In Canada (Attorney General) v
Public Service Alliance of Canada, an employee made a
complaint alleging favoritism, unfair treatment and disrespectful
treatment in the workplace (including dismissive hand gestures, eye
rolling, and verbally demeaning behaviour). The employer conducted
a fact-finding mission to review the employee's concerns and
determine whether an investigation was warranted. After conducting
a review, including an interview of the complainant, the employer
determined that the allegations did not constitute workplace
violence and did not warrant an investigation.
The employee's union took the position that the employer had
not simply conducted a fact-finding mission but had investigated
the matter without first selecting a "competent person"
as required under the Canada Occupational Health and Safety
Regulations (the "Regulation") when an employer
becomes aware of workplace violence and is unable to resolve the
matter informally with the employee. In order to be considered a
"competent person" under the legislation, the
investigator must be impartial and must be seen to be impartial by
The matter was heard by an Appeals Officer under the
Canada Labour Code. The Appeals Officer determined
that the employer was entitled to consider whether the complaint
was related to workplace violence prior to the appointment of a
competent person. In this case, the Appeals Officer found that the
allegations did not rise to the level of workplace violence.
On judicial review, the Federal Court ruled that the definition
of workplace violence under the Canada Labour Code
was broad enough to encompass the allegations in the complaint,
finding that workplace violence includes forms of harassment
including psychological bullying. Further, it held that if informal
attempts at resolution are unsuccessful, a competent person must be
appointed unless it is "plain and obvious" that the
complaint does not relate to workplace violence.
The Federal Court of Appeal agreed with the lower court
decision, finding that the Regulation requires employers to appoint
a competent person to investigate the complaint unless it is
"plain and obvious" that the allegations do not amount to
workplace violence. Although the Federal Court of Appeal stated
that the intent of the legislation was not to compel an employer to
appoint a competent person each and every time it receives a
complaint, it did provide that the threshold is quite low.
Notably, the Canada Labour Code applies only to
federally regulated employment relationships, which includes
federal public sector workers and certain prescribed industries
(e.g. telecommunications, international/interprovincial
transportation, and aviation). There is no similar express
requirement in provincial health and safety legislation that
investigators be "competent" and agreed by both parties
to be "neutral". However, employers should pay attention
to case law and legislative changes in their respective
jurisdictions. For instance, in Ontario Bill 132 has amended the
Occupational Health and Safety Act
("OHSA"), and has provided new powers for OHSA
Inspectors to order an employer to appoint an impartial
investigator to investigate workplace harassment complaints.
The Federal Court of Appeal's ruling in this case puts
substantial limitations on a federal employer's ability to weed
out allegations that do not rise to the level of workplace
violence. The Canada Labour Code contains a broad
definition of "workplace violence" which means that more
often than not an employer will be required to appoint a
"competent person" to investigate complaints. Since the
parties must agree that the investigator is impartial, it is likely
that the employer will need to retain an external investigator in
most cases, which can be costly.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The new Sexual Violence and Harassment Action Plan Act (Bill 132) imposes a range of new duties in regard to workplace harassment. These include requiring employers to amend their programs to implement workplace harassment policies and establish new rules for the investigation of workplace harassment incidents or complaints.
Receive expert guidance from experienced employment lawyers as to how your organization can comply with this new law painlessly and address workplace harassment effectively
This past year has been marked with significant changes to employment legislation, and watershed decisions that will affect employers for years to come. We've designed this year's conference to deliver a practical and digestible review of what you need to know to manage your employees effectively.
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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.
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