The Federal Court of Appeal recently had a chance to review a
decision by the Occupational Health and Safety Officer on the
question of who should be in charge of investigating when an
employee makes a workplace violence complaint in the case of Canada
(Attorney General) v PSAC. In that case a poultry
inspector submitted a written complaint alleging humiliation and
unfair and disrespectful treatment. The employer appointed one of
its directors to determine whether the allegations amounted to
harassment or workplace violence. The director concluded that that
the threshold had not been met and closed the case.
The employee felt that it was not up to the employer to
arbitrarily decide what does or does not constitute workplace
violence, and, after an unfavourable ruling by the Appeals Officer,
took the matter to Federal Court. The Court found that harassment
of the kind alleged by the employee rose to the level of workplace
violence, stating that "psychological bullying can be one of
the worst forms of harm that can be inflicted on a person over
The Federal Court of Appeal considered whether an Appeals
Officer was correct in finding that an employer is entitled to
assess a complaint of workplace violence before being required to
appoint a "competent person" to investigate the matter,
essentially allowing the employer to screen complaints. The Federal
Court of Appeal emphasized the definition of "workplace
violence" 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 then reminded us of the obligations
placed on the employer by the Canada Occupational Health and Safety
Regulations, which is to provide a safe, healthy and
violence-free work place and to "dedicate sufficient
attention, resources and time to address factors that contribute to
work place violence including, but not limited to, bullying,
teasing, and abusive and other aggressive behaviour and to prevent
and protect against it."
In order to meet the ambitions of the Regulations, the
Federal Court of Appeal ultimately decided that an employer has a
duty to appoint a competent person to investigate the complaint if
the matter is unresolved, unless it is plain and obvious that the
allegations are false/unrelated to work. This means that while
employers may do a preliminary review to resolve the matter
informally, the full-fledged investigation must be left to the
hands of a competent and impartial party.
Written with the assistance of Alexander Kokach, summer
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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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