Back in July CCPartners published an article on our Employers' Edge blog about the passage of Bill C-65. That Bill introduced new Regulations under the Canada Labour Code with respect to workplace harassment and violence. You can read that blog here for a comprehensive overview of the new legal landscape coming into effect January 1, 2021.
This article will explore some of the more specific aspects of conducting workplace investigations under the new Regulations.
1. Canada Labour Code Applies to Federally-Regulated Workplaces
Most workplaces in Canada are regulated by jurisdiction of their particular province or territory. The Canada Labour Code applies to workplaces associated with federal works and undertakings. In addition to different branches, agencies, and ministries of the Federal government, federally-regulated workplaces include things like First Nations Band Councils, banks, telecommunications, air transportation, and inter-provincial travel and transport including via railway.
If the workplace is federally-regulated, then the Canada Labour Code applies to it. Otherwise, legislation regarding workplace harassment, violence, and investigations, will be governed by the province or territory.
2. In General, Who Should Investigate?
The new Regulations dictate that the investigator should be a person who is agreed to by all parties from a list of acceptable investigators, or otherwise a person agreed to by the parties, and failing agreement, then a person identified by the Canadian Centre for Occupational Health and Safety as being qualified. In any case, the investigator must be trained, knowledgeable, and declare themselves to be free of conflict of interest in respect of the investigation.
No matter what jurisdiction governs your workplace, employers are well advised to ensure that they use a workplace investigator who is appropriate in the circumstances. A relatively minor incident or allegation between employees may not warrant retaining a third party investigator.
An external investigator is more likely to be appropriate where the allegations raise complicated issues of fact, or the allegations if true, are not so easy to define as workplace violence or harassment. And if an allegation is made by an employee against their supervisor or a member of management, it is advised that employers consider an independent external investigator to avoid even the appearance of bias.
It is crucial that a workplace investigator be properly trained and experienced to conduct the investigation, and prepare a report with proper findings, and perhaps above all, be able to assess all information and draw conclusions impartially and independently.
3. New Considerations Under Canada Labour Code
Workplace complaints normally involve a complainant and a respondent, but the new Regulation under the Canada Labour Code refers to a "principal party" and a "responding party" in addition to witnesses. It also states expressly that a complaint can be initiated by a witness who is not the principal, and that the witness initiating the complaint can choose to remain anonymous. However, there is no provision allowing the principal to maintain anonymity.
The Regulation requires the investigator to provide "an investigator's report" to the parties upon concluding the investigation. The Regulation requires that the investigator's report include:
(a) a general description of the occurrence;
(b) their conclusions, including those related to the circumstances in the work place that contributed to the occurrence; and
(c) their recommendations to eliminate or minimize the risk of a similar occurrence.
At the same time however, that investigator's report cannot reveal, directly or indirectly, the identities of the persons involved.
There is generally no right for anyone other than the employer who retained the investigator to receive a full report of a workplace investigator's findings. Of course if the substance of a workplace complaint is subject to litigation, it is to be expected that a full investigation report may be ordered to be produced to all the parties. However, an investigation report is typically a comprehensive document that includes a lot of sensitive and private information that is not ultimately relevant to the investigator's findings.
Parties directly affected by a workplace investigation are always entitled to know the investigator's findings. Often the employer will meet with the complainant and respondent separately to advise them of the outcome and consequences. An investigator is sometimes asked to prepare conclusion letters, or executive reports for the complainant and respondent. Those documents would include the substance now required in the Regulation. However it does not appear that the principal party, responding party, and other parties, are entitled to actually receive a copy of the investigator's full report to the employer.
4. The Bottom Line for Employers
Workplace investigations are not a new concept in Canadian employment law, but we are being subject to new legislation and jurisprudence regarding how and when workplace investigations are to be conducted.
Employers should be sure that you understand whether they are governed federally and provincially, and which laws apply to them with respect to workplace violence and harassment and consequent investigations. Once that is done, ensure that your workplace violence and harassment policies are properly up-to-date and compliant with the law.
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.