Competent persons under the Canada Labour Code – employees must agree to impartiality

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Readers of Focus will recall that under the Canada Occupational Health and Safety Regulations (the “Regulations”) passed pursuant to the Canada Labour Code, where a complaint of workplace violence cannot be resolved informally with the complaining employee, an employer is required to appoint a “competent person” to investigate the complaint. Section 20.9 of the Regulations defines a “competent person” to be, among other things, someone who is “impartial and is seen by the parties to be impartial” (underlining added). In a recent decision, the Occupational Health and Safety Tribunal Canada (the “Tribunal”) held that this requirement means that the complaining employee and the employee alleged to have engaged in an act of workplace violence must both agree that the proposed investigator is impartial.

In Maritime Employers Association v. Longshoremen’s Union, CUPE, Local 375 (September, 2016) the issue before the Tribunal was whether the employer breached its obligation to appoint a competent person to investigate a complaint of workplace violence due to the fact that the employee who had filed the complaint expressed his disagreement with the impartiality of the investigator appointed by his employer. The employer argued that there was an onus on the employee to provide reasons justifying his claim of bias. The employer argued that absent such a requirement, an employee could disagree with an employer’s proposed investigator for improper reasons, such as discriminatory or sexist considerations, or simply to thwart the investigation.

The Tribunal rejected the employer’s position as being inconsistent with the clear wording of section 20.9 of the Regulations. In the view of the Tribunal, the wording of paragraph (a) of section 20.9 clearly “evokes a subjective notion of impartiality and relies on the perception of the parties involved.” According to the Tribunal, the language used in the Regulations makes it clear that what is required is that the parties to a complaint agree on whether the person proposed by the employer as investigator is impartial. The Tribunal rejected the employer’s contention that there was a requirement on employees who challenge the impartiality of a proposed investigator to substantiate or justify that claim. In the Tribunal’s view, this approach would add a substantive condition to the regulation which is not present based on the wording of the provision. The Tribunal found that an employee’s disagreement with a proposed investigator’s impartiality is sufficient to preclude the employer from proceeding with the investigation using that investigator.

The Tribunal went on to discuss the employer’s argument that by failing to require an employee to justify their disagreement, an employee could act capriciously or for improper reasons. The Tribunal stated:

It is a principle of law that no person can abuse his or her rights. Such an abusive or discriminatory approach certainly has no place and could, in my view, be punished through disciplinary action or interpreted as a waiver of the rights conferred on the parties by subsection 20.9(3) of the Regulations.

In the result, the Tribunal dismissed the employer’s appeal.

 

In our view

Readers of Focus will recall that the appointment of a “competent person” for purposes of investigating complaints of workplace violence under the Canada Labour Code was recently considered by the Federal Court of Appeal in Attorney General of Canada and Public Service Alliance of Canada (November, 2015) (see Federally-regulated employers cannot “screen” complaints of work place violence – must appoint “competent person” to investigate unresolved allegations). The issue in that case revolved mainly around whether federally-regulated employers are entitled to conduct a preliminary screening of workplace violence complaints and the stage at which they are required to appoint a competent person to investigate such complaints. The decision nevertheless underscores the importance of an employer appointing an impartial investigator to investigate complaints of workplace violence. Indeed, the Federal Court of Appeal decision was quoted extensively by the Tribunal in the present case.

For federally-regulated employers, the thrust of these cases is that a proposed investigator will not be considered to be a competent person if either of the parties to a complaint takes issue with their impartiality. While it will be open to an employer to establish that the employee’s grounds for challenging the impartiality of the proposed investigator constitute an abuse (e.g., because they are based on discriminatory considerations, for example), there is no initial onus on the employee to justify his or her challenge to the investigator’s impartiality. As a result of this decision, employers who are unable to resolve a complaint of workplace violence informally and are therefore required to appoint an investigator, must ensure that both parties to the complaint are in agreement with the appointment.

It should be noted that a different scheme applies to provincially-regulated employers in Ontario under the Occupational Health and Safety Act. As a result of changes enacted to the OHSA as a result of Bill 132, which came into force on September 8, 2016, Ontario employers are now required to conduct investigations into all complaints of workplace harassment (which includes workplace sexual harassment). However, provincially-regulated employers in Ontario are granted a much higher degree of discretion in the conduct of such investigations, as the only legislative requirement is that any investigation be “appropriate in the circumstances”. Employers in Ontario should nevertheless exercise caution in the conduct of such investigations as a failure to properly investigate may result in the Ministry of Labour inspectors appointing an external investigator, which would have to be paid for by the employer.

For further information please contact Steven Williams at 613-940-2737.