Canadian Safety Reporter

4 Canadian HR Reporter, a Thomson Reuters business 2018 CSR | June 2018 | News ing something was wrong with Hoey and he eventually leapt up, leaned across the table, and shoved his open palm in front of Hoey's face. Robson started screaming at Hoey with profani- ties to keep quiet. Hoey ran out of the room onto the boat's back deck where he told Robson he wanted to go back to the Seas- pan dock. He then started unty- ing the boat. When the boat returned to the Seaspan dock, Hoey re- ported the incident to company management and a union rep- resentative, saying he had felt threatened, intimidated, and thought Robson was about to attack him. Management told Hoey they would interview Rob- son and he should go home with pay that day. They also said Hoey wouldn't be allowed to sail with Robson for three months. Hoey wasn't happy with man- agement's decision and felt he was being punished. He dis- agreed with the documented account of the incident and met with a company representative to give his side of things and dis- cuss his concerns with the out- come of the meetings. On Dec. 1, Hoey reported the incident to Seaspan's director of employee relations and wellness. A Transport Canada inspec- tor who also performed inves- tigations for the B.C. Ministry of Labour met with the director of employee relations and well- ness and reviewed the incident. He then instructed Seaspan and Hoey to "please follow your in- ternal complaint procedures" as outlined in the company's vio- lence prevention policy and fol- lowed up with an email confirm- ing this instruction. Second investigator A second Transport Canada senior marine inspector visited Seaspan on March 29, 2016, in the capacity of an official del- egated by the B.C. Minister of Labour – secondary duties to his main role inspecting cargo for Transport Canada – to conduct an inquiry into Seaspan's com- pliance with the Canada Labour Code and the Maritime Occupa- tional Health and Safety Regula- tions (MOHSR). The inspector met with Seaspan's employee relations manager and repre- sentatives from the company's workplace health and safety committee. Seaspan showed the second inspector that it had a violence prevention policy that had been recently reviewed and amend- ed. However, it couldn't provide any documents showing that its employees had been prop- erly trained in the policy. The inspector asked if the company would provide an "assurance of voluntary compliance" instead of being issued a compliance direction, but the company de- clined. Seaspan informed the second inspector there had been six in- cidents of workplace violence at Seaspan, but the company had no record of any of them. The inspector was also aware of the incident with Hoey and Robson six months earlier, as Transport Canada had been told of it. After some consideration, the inspector issued a direction to Seaspan on May 11, 2016, iden- tifying two contraventions of the Canada Labour Code. The direction indicated that Hoey had not been trained in Seas- pan's workplace violence pre- vention policy as required by both the code and the MOHSR. The inspector also found that Seaspan didn't resolve the inci- dent involving Hoey and Rob- son or ensure it was investigat- ed by "a competent person," also required by the MOHSR. Seaspan appealed the second directive, arguing that it had investigated the incident and it determined there was no work- place violence. The legislation offered two solutions for an al- legation of workplace violence – try to resolve the matter or, if this attempt is unsuccessful, appoint a "competent person" to investigate. According to Seaspan, its finding there was no workplace violence resolved the matter. The company also argued that the first inspector had already investigated and had instructed it to follow the internal process as described in Seaspan's violence prevention policy. The Canada Occupational Health and Safety Tribunal first addressed the initial review of the incident by the first inspec- tor acting as a ministry delegate following Hoey's initial report. Though the delegate qualified as a "competent person" under the MOHSR capable of inves- tigating incidents, the tribunal found that the delegate sim- ply reviewed the matter and advised Seaspan to follow its internal policy on workplace violence. "I do not interpret (the first ministry delegate's) email to (Seaspan) to amount to a deci- sion made after a full investiga- tion of the facts surrounding Mr. Hoey's complaint," said the tribunal. "Therefore, in my opin- ion, there is nothing that pre- cluded the (second) ministerial delegate, upon being assigned this case, from conducting his own investigation into the mat- ter and from issuing the direc- tion under appeal." Employer not allowed to conduct investigation itself The tribunal also found that the MOHSR doesn't permit feder- ally regulated employers to con- duct their own investigation to determine if workplace violence occurred. They may conduct a preliminary review in an at- tempt to resolve the matter, but if the attempt isn't successful, it must proceed with the investi- gation by "a competent person." Since Hoey wasn't happy with the outcome of Seaspan's review, felt he was being punished, and reported the incident on Dec. 1, 2015, the matter couldn't be con- sidered to be resolved, said the tribunal. "The obligation put on the employer to resolve the matter under… the MOHSR necessi- tates that all parties involved in the incident are satisfied with the outcome of the resolution pro- cess," the tribunal said. "There is no dispute that Mr. Hoey, the alleged victim, expressed his dis- contentment with the decision made by management to not al- low the two individuals to work together for a period of three months as a way to resolve the situation." In addition, the tribunal noted that Hoey felt threatened and in- timidated by Robson's conduct, so "it is plausible that a compe- tent person investigating all the facts could conclude that the conduct of the captain on that day amounted to workplace vio- lence." As a result, it was evident the matter required more than Seaspan's evaluation of the cir- cumstances and the first inspec- tor's cursory review, said the tri- bunal. The tribunal determined that the second inspector's direc- tions were correctly applied un- der the legislation and dismissed Seaspan's appeal. For more information see: • Seaspan Marine v. International Longshore and Warehouse Union Local 400, 2017 CarswellNat 4162 (Can. OH&S Trib.). Employer's < pg. 1 First inspector's cursory review not an investigation worker had knee problems going back as far as 2009 — four years before the workplace accident for which she was filing a claim. Though a specialist referred to the workplace accident when as- sessing the worker's symptoms a few months later, he didn't have the worker's full medical his- tory and the worker was able to return to her regular duties less than two months after the acci- dent. The tribunal agreed with the earlier decisions that the worker's injury was resolved and her ongoing knee and shoulder symptoms were not related to her workplace accident. It up- held the rejection of the worker's claim for benefits and denied her appeal. For more information see: • Decision No. 3478/17, 2018 CarswellOnt 3918 (Ont. Workplace Safety and Insurance Appeals Trib.). Postal worker < pg. 3 Knee problems went back years

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