Federally-regulated employers cannot “screen” complaints of work place violence – must appoint “competent person” to investigate unresolved allegations

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In Attorney General of Canada and Public Service Alliance of Canada (November, 2015), the Federal Court of Appeal confirmed that employers are not entitled to unilaterally determine whether a complaint meets the definition of work place violence.  Unless it is “plain and obvious” that the allegations set out in a complaint fall outside of the definition of work place violence under the Canada Occupational Health and Safety Regulations (Regulations), an employer must appoint an impartial “competent person” to conduct an investigation if the matter cannot be resolved with the employee.

By way of background, in December of 2011 an employee of the Canadian Food Inspection Agency (CFIA) filed a complaint of harassment with his employer.  The employee alleged that his manager engaged in various acts of humiliating and demeaning behaviour.  The CFIA appointed one of its Regional Directors to undertake a fact-finding review of the employee’s complaint.  He concluded that while there were issues between the employee and his manager, there was no basis to conclude that there was any harassment and as a result, no further investigation was warranted. The Regional Director did recommend that an independent third party facilitator be hired to assist the employee and his supervisor find a resolution to the issues in their interpersonal dealings.

The employee complained about the investigation to a Health and Safety Officer (HSO) and requested that an investigation be initiated by a “competent person” under section 20.9 of the Regulations made under the Canada Labour Code (Code).  Section 20.9 sets out the following regime for addressing allegations of work place violence:

20.9     (1) In this section, “competent person” means a person who
(a) is impartial and is seen by the parties to be impartial;
(b) has knowledge, training and experience in issues relating to work place violence; and
(c) has knowledge of relevant legislation.

(2) If an employer becomes aware of work place violence or alleged work place violence, the employer shall try to resolve the matter with the employee as soon as possible.

(3) If the matter is unresolved, the employer shall appoint a competent person to investigate the work place violence and provide that person with any relevant information whose disclosure is not prohibited by law and that would not reveal the identity of persons involved without their consent.

(4) The competent person shall investigate the work place violence and at the completion of the investigation provide to the employer a written report with conclusions and recommendations. …

The CFIA responded to the employee’s request by stating that the fact-finding review conducted by the Regional Director met the requirements set out in section 20.9 of the Regulations.  The HSO disagreed.  In her view, the Regional Director was not impartial and therefore not a “competent person” as defined in the Regulations.  She issued a Direction requiring the CFIA to have an impartial “competent person” conduct the investigation.

The CFIA appealed that Direction to an Appeals Officer under subsection 146(1) of the Code.  The appeal was allowed on the basis that the alleged harassing conduct did not meet the definition of “work place violence” and therefore, the employer was not obligated to appoint an investigator.  In the Appeals Officer’s view, the employer was entitled to determine whether the complaint related to work place violence before appointing a competent person to conduct an investigation.

The employee brought an application for judicial review of the Appeals Officer’s decision.  The Federal Court application judge found that the definition of “work place violence” under the Regulations is broad enough to include harassment where the alleged harassing conduct has the potential to cause mental or psychological harm or illness. In coming to this conclusion he recognized that “psychological bullying can be one of the worst forms of harm that can be inflicted on a person over time.” He found that any pre-screening of a complaint must be limited to fact-finding for the purposes of resolving the dispute with the employee and facilitate mediation if possible. He went on to find that, in conducting a full investigation into the employee’s complaint, the CFIA Regional Director purported to act as a “competent person” under section 20.9 of the Regulations.  However, because there was no agreement by the employee that he was an impartial party, the Regional Director was not a “competent person” and therefore had no authority to conduct the investigation.  The application judge concluded that the Appeals Officer’s decision was unreasonable and referred the matter back for re-determination in accordance with his reasons.

The CFIA appealed that decision to the Federal Court of Appeal.  The issue on appeal related to the interpretation to be given to section 20.9 of the Regulations and, more specifically, whether an employer is entitled to take it upon itself to conduct a preliminary screening of complaints alleging work place violence in order to determine whether they trigger the obligation to appoint a competent person to conduct an investigation.

The Federal Court of Appeal stated that the purpose of section 20.9 was to offer an avenue of redress for employees who were subject to work place violence by having the employer appropriately deal with the situation.  Based on that purpose, the Federal Court of Appeal could not accept the interpretation accepted by the Appeals Officer, stating:

“…allowing the employers to conduct their own investigations into complaints of work place violence and to reach their own determination as to whether such complaints deserve to be investigated by a competent person would make a mockery of the regulatory scheme and effectively nullify the employees’ right to an impartial investigation of their complaints with a view to preventing further instances of violence.”

The Federal Court of Appeal confirmed 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 do not relate to work place violence even if accepted as true.” It agreed with application judge that the decision of the Appeals Officer fell outside the scope of possible, acceptable outcomes, and in fact was unreasonable.  The CFIA’s appeal was dismissed with costs.

Although it is reasonable for employers to undertake initial fact-finding activities in the face of allegations of work place violence, the decision in Attorney General of Canada and Public Service Alliance of Canada makes it clear that employers cannot “screen out” work place violence complaints.  Unless it is plain and obvious that the allegations, if taken as being true, do not relate to work place violence, or unless the complaint is resolved with the employee, the employer is obligated to appoint an impartial “competent person” to conduct an investigation.

For further information please contact Jennifer Birrell at 613-940-2740.