Employers and workers must both agree those appointed to investigate incidents of workplace violence are competent and impartial, says a federal tribunal.
 
In a case before the Occupational Health and Safety Tribunal of Canada, the Maritime Employers Association appealed an order under the Canada Labour Code for failing to appoint a competent person to investigate an employee’s allegation of workplace violence.
 
The Canada Occupational Health and Safety Regulations Part XX addresses Violence Prevention in the Work Place. The Federal Regulation is designed to prevent violence as well as “factors that contribute to work place violence including, but not limited to, bullying, teasing, and abusive and other aggressive behaviour.”
 
Federal employers who become aware of workplace violence must attempt to resolve it. If they can’t, they must appoint a ‘competent’ person to investigate. The Regulations define a competent person as someone with knowledge, training and experience of workplace violence and relevant legislation. Equally important a competent person “is impartial and seen by the parties to be impartial.”
 
The worker alleging the violence, a member of the Longshoremen’s Union, Canadian Union of Public Employees Local 375, questioned the impartiality of the appointed internal investigator. A federal safety officer, called in to investigate, upheld the worker’s complaint and issued an order against the employer.
 
In the tribunal ruling, the Appeals Officer concluded the test of impartiality is a subjective one and the intent of the legal text is unambiguous, “The legislator clearly preferred a consensual approach to the issue of impartiality. By including the words and is seen by the parties to be impartial after the word impartial, the legislator clearly requires the parties to agree on whether the person proposed by the employer is impartial….If an agreement is not reached, the proposed person simply cannot be appointed.”
 
The ruling also clarified workers do not have to substantiate their refusal of an appointed investigator as long as it does not amount to an abuse of those rights.
 

Lessons for Ontario regulated workplaces

This ruling, although it applies to federally regulated workplaces, will also be of interest to Ontario employers whose duties to investigate workplace harassment were recently expanded with amendments to the Occupational Health & Safety Act (the Act). Since 2010, Ontario employers have had the duty to investigate allegations of workplace violence and harassment. Recent amendments set out more specific provisions for investigating workplace harassment, including workplace sexual harassment.
 
Employers must conduct ‘appropriate’ workplace harassment investigations. Ministry of Labour health and safety inspectors also have new powers to order harassment investigations, at the expense of the employer, by an impartial, qualified person.
 
Unlike the COSH Regulations, Ontario law does not set out competency requirements for investigators of workplace violence and harassment. In support of fair and impartial investigations, many workers and their representatives have asked the Ministry of Labour to provide a list of approved impartial investigators.
 
By law, Ontario employers must provide information and instruction to workers on their workplace harassment policy and program. WHSC offers a recently revised three-hour Workplace Violence and Harassment Prevention Training program including how to fully comply with all legal obligations.
 
Additionally, WHSC has revised compliance checklists for employers and workers and has developed a new fact sheet, Workplace Harassment: from investigation to prevention, a complement to updated fact sheets on workplace violence and domestic violence in the workplace.
 
WHSC also offers comprehensive training for Federal Committees and Representatives, available in both English and French.
 
Check out WHSC Workplace Violence Resources and review the complete WHSC training catalogue.
 
Other related resources:
MOL issues Code of Practice on workplace harassment
OHCOW Mental Injury Toolkit
MOL Workplace Violence & Workplace Harassment Resources
 
To learn more:
Visit:      https://www.whsc.on.ca
Email:    contactus@whsc.on.ca
Call:       1-888-869-7950 and ask to speak to a WHSC training services representative.