The Federal Court of Appeal recently had a chance to review a decision by the Occupational Health and Safety Officer on the question of who should be in charge of investigating when an employee makes a workplace violence complaint in the case of Canada (Attorney General) v PSAC. In that case a poultry inspector submitted a written complaint alleging humiliation and unfair and disrespectful treatment. The employer appointed one of its directors to determine whether the allegations amounted to harassment or workplace violence. The director concluded that that the threshold had not been met and closed the case.

The employee felt that it was not up to the employer to arbitrarily decide what does or does not constitute workplace violence, and, after an unfavourable ruling by the Appeals Officer, took the matter to Federal Court. The Court found that harassment of the kind alleged by the employee rose to the level of workplace violence, stating that “psychological bullying can be one of the worst forms of harm that can be inflicted on a person over time.”

The Federal Court of Appeal considered whether an Appeals Officer was correct in finding that an employer is entitled to assess a complaint of workplace violence before being required to appoint a “competent person” to investigate the matter, essentially allowing the employer to screen complaints. The Federal Court of Appeal emphasized the definition of “workplace violence” as ““any action, conduct, threat or gesture of a person towards an employee in their work place that can reasonably be expected to cause harm, injury or illness to that employee.” The Court then reminded us of the obligations placed on the employer by the Canada Occupational Health and Safety Regulations, which is to provide a safe, healthy and violence-free work place and to “dedicate sufficient attention, resources and time to address factors that contribute to work place violence including, but not limited to, bullying, teasing, and abusive and other aggressive behaviour and to prevent and protect against it.”

In order to meet the ambitions of the Regulations, the Federal Court of Appeal ultimately decided 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 are false/unrelated to work. This means that while employers may do a preliminary review to resolve the matter informally, the full-fledged investigation must be left to the hands of a competent and impartial party.

Written with the assistance of Alexander Kokach, summer student.

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