Canada: The Tail Wags The Dog: Federal Sector Employee Vetoes Employer`S Appointment Of Investigator

Last Updated: November 29 2016
Article by Stringer LLP

The integration of workplace violence and harassment protections into occupational health and safety legislation has been a theme in Canada for more than half a decade.  Although in Ontario most attention has been paid to significant amendments to the Occupational Health and Safety Act, such as Bill 168 and the more recent Bill 132, legislation in other jurisdictions has also been amended to include provisions dealing with harassment and violence in the workplace.

The federal jurisdiction has enacted some of the most significant reforms.  The Canada Labour Code has regimented requirements for an employer dealing with a harassment complaint that go beyond what is seen in Ontario legislation.  The Code sets out specific procedures and requirements that require specific investigative steps and processes to be implemented by employers in certain situations.  In such instances, the Code requires that an employer appoint a person to investigate a complaint who is "seen by the parties to be impartial." 

A recent case brought into question whether an employee objecting to the appointment of an investigator due to their perceived impartiality is under an onus to justify their position.

In Maritime Employers' Association v CUPE, the complainant had made a complaint of harassment against a co-worker.  The employer appointed a consultant with which it was affiliated to investigate the allegations.  The complainant objected to that appointment, stating that he did not view the investigator as impartial.  The complainant alleged that due to previous discipline he had received from the employer, he would not consider anyone from the employer as impartial and demanded that a third party investigator is appointed.  The employer refused.

Ultimately, the employee filed a complaint with the federal Ministry of Labour.  The Ministry of Labour issued orders requiring that the employer appoint a third party investigator seen by the parties as impartial, effectively upholding the employee`s objection to the appointed investigator.

The employer appealed the Ministry`s orders to the Occupational Health and Safety Tribunal Canada.

The employer argued that the question of impartiality must be assessed on an objective basis.  In other words, the question ought to be whether a reasonable person would consider the investigator to be impartial, as opposed to a subjective test that would assess whether the particular party considered the investigator to be impartial.  The employer argued that its interpretation was the only one that would prevent employees from abusing the provision so as to dictate who could conduct an investigation.

The employee asserted that he did not have to justify his subjective opinion that the investigator appointed was not impartial.  In any event, he said that he had justified that opinion on the basis that he perceived any representative of the employer as biased due to his previous disciplinary history.

The Tribunal determined that the words of the legislature meant that the parties had to subjectively agree that the investigator was impartial.  It held that the legislature's words intended that the assessment of impartiality by the parties was to be subjective, and that it would be improper and contrary to the section to apply an objective standard.

The Tribunal also examined cases in which the objective test was used, such as when a judge or adjudicator is accused of appearing biased.  However, it found that that case law was not applicable to this section of the Code.

The Tribunal addressed the argument put forward by the employer that an employee could simply abuse this provision to block the appointment of investigators on the basis that they were suggested that an abuse of this process by an employee could be tantamount to a waiver of the right to an investigator mutually agreed upon by the parties as impartial.  However, the Tribunal did not suggest how this might be proven or might be effective in practice.

What Employers Should Know

Employers in the federal sector must be aware that, in meeting their obligations under the Code, employees have a wide subjective latitude to reject the appointment of investigators as biased.  An employee need not provide any reasons for their rejection of an investigator, and an employer likely only has recourse in cases where the rejection is clearly not in good faith.  Proving bad faith is particularly difficult.  This could lead to significantly more cost for employers, particularly in a case such as this one where the wholesale rejection of any member of the employer as an investigator would require the expensive step of retaining an external investigator.

The agreement of an employee to appoint an investigator is not a requirement under the Ontario Occupational Health and Safety Act, even after the amendments introduced in Bill 132.  In fact, there is no requirement in the Occupational Health and Safety Act that a third party investigator ever be appointed in the context of a harassment complaint.

However, the new amendments allow an employee to complain to the Ministry of Labour if there is an alleged breach of a harassment policy because of the appointment of an investigator.  An inspector from the Ministry can then order the appointment of an investigator, which may be an expensive step.  As there are no reported decisions involving a Ministry of Labour inspector issuing an order to appoint a third party investigator, we do not yet have any guidance as to what factors may be involved in their exercise of this power.  However, this case suggests that, if the Ministry looks to the federal sector for guidance, employees' complaints about the investigators appointed to look into harassment complaints may not be subject to the scrutiny that one might expect.

It is important to note that as employer responses to harassment become more and more enshrined in legislation, there is less flexibility and control for employers to assure that they can effectively manage the investigation process.  This decision continues this trend and further erodes the ability of federal sector employers to respond in a flexible way to complaints of employee misconduct.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions