Canadian HR Reporter

CANADIAN HR REPORTER February 8, 2016 6 NEWS Public sector employers can't arbitrarily decide what is workplace violence: Court ey have obligation to investigate using impartial, competent individuals BY LIZ FOSTER WHEN IT comes to workplace violence, public sector employers don't have the right to arbitrarily decide what constitutes such vio- lence — they have an obligation to investigate using an impartial, competent person, according to the Federal Court of Appeal. "Absent a situation where it is plain and obvious that the allega- tions fall outside the scope of the definition of workplace violence, the employer must appoint a 'com- petent person' to investigate when the matter cannot be resolved with the employee," said Justice Yves de Montigny in his decision. Background The court's Nov. 30 decision involved a workplace violence complaint filed in 2011 by Abel Akon, a poultry inspector for the Canadian Food Inspection Agency (CFIA) in Saskatchewan and member of the Public Service Alliance of Canada (PSAC). Akon alleged he was harassed, belittled and humiliated by his supervisor. He said the conduct included "dismissive hand gestures, eye rolling, verbally demeaning be- haviour, disregarding complaints regarding other employees yelling at him in front of plant personnel, lack of transparency and unfair marking of a certification exam." e CFIA assigned a manager to do a fact-finding review of Akon's complaint and the inves- tigations concluded there was no evidence of harassment. But Akon told a federal health and safety of- ficer the CFIA manager was not sufficiently impartial to conduct the investigation. So the officer directed the CFIA to appoint an impartial person to investigate, as required under the Canada Labour Code. The CFIA appealed that direction to the Occupational Health and Safety Tribunal Can- ada, which found the CFIA acted appropriately when it dismissed Akon's complaint. The appeals officer said the allegations did not constitute workplace violence because the conduct of Akon's supervisor's could not reasonably be expected to cause harm, illness or injury. e tribunal's finding was then appealed to the Federal Court, with PSAC arguing the harass- ment Akon experienced could constitute workplace violence. Investigations important In the end, the court said "an unfettered discretion given to employers to determine whether a complaint warrants an inves- tigation by a competent person" is at odds with the Canada Oc- cupational Health and Safety Regulations. "e appeals officer's conclu- sion that an employer is entitled to review a complaint to determine whether it meets the definition of workplace violence was unrea- sonable," said Montigny. "Allowing the employers to con- duct their own investigations into complaints of workplace violence and to reach their own determi- nation as to whether such com- plaints 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." A significant number of public service employees consistently report they have experienced ha- rassment at work, said Lisa Ad- dario, legal counsel for PSAC. "An employee is entitled to an investigation by someone who is not invested in the outcome be- cause of their position within an organization or their affiliation with the employer, and who is knowledgeable about the dynam- ics of workplace violence and its potential to adversely impact an employee." e Federal Court of Appeal also confirmed that "workplace violence may encompass harass- ment, and that psychological harassment can reasonably be ex- pected to cause harm or illness in some circumstances." e ruling confirms what the PSAC has been saying all along — that harassment is part of the violence spectrum and has to be looked at like that and investigat- ed appropriately, said Bob Kings- ton, president of the Agriculture Union, an affiliate of PSAC. By recognizing psychological harassment as an aspect of work- place violence, employers are bet- ter equipped to protect workers, he said. "When you try to separate them into totally different redress mechanisms and with different rights under each system, you end up spending all of your time arguing whether it's harassment or violence instead of investigat- ing and resolving the issue." Impact on employers e requirement that a compe- tent person conduct the investi- gation into complaints of work- place violence, which can include complaints of harassment, does concern employers, said Adrian Miedema, partner at Dentons Canada in Toronto. "e question that will come out of this is: Will employers — when they have to engage a com- petent person — will many of them be forced to go outside of the company? Some employers may not be able to get agreement from the union or employees on an internal person, and they may have to go outside and have an outside investigator do these investigations, which obviously adds an additional cost." Mitigating these concerns is the fact the Federal Court of Ap- peal's decision did not impose re- quirements for the investigations themselves said Miedema. "It doesn't say the investigator has to spend three days investigat- ing, or two days," he said. "It says you have to have a competent person conduct an investigation. In some cases, that competent person may look at the allegations and say, fairly quickly, 'ose al- legations don't make out a proper case of workplace violence.' I wouldn't say this imposes a really significant burden on employers." While some see this decision as groundbreaking, Miedema pre- dicted the ruling will have little ef- fect on the day-to-day operations of federal employers. "Employees, if they really want to get the case investigated in a thorough manner, because of the very broad definition of work- place violence, might be moti- vated to allege workplace violence (rather than harassment) and then the employer has to look at it and as long as it meets the very low threshold, they have to conduct an impartial investigation," he said. But it's doubtful the court's de- cision will result in any significant increase in workplace violence complaints, said Miedema "I would be very surprised if this decision were seen to result in a significant increase in workplace violence complaints." Moving forward, the decision will be significant in guiding fed- eral employers to address the is- sue of harassment and workplace violence in a more meaningful way, said Miedema. "is will get people actually dealing with the issue," he said. "The general awareness and changing attitudes about mental health in the workplace will take awhile but I'd rather be working on that than still fighting over definitions." "Allowing employers to conduct their own investigations... makes a mockery of the regulatory scheme and nullifies employee rights." Former CBC personality Jian Ghomeshi at the 2014 Canadian Screen awards in Toronto. A 2015 report found the broadcaster failed to properly investigate allegations and concerns about his behaviour. Credit: Mark Blinch (Reuters)

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