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Federal employee has effective veto over appointment of “impartial” workplace violence investigator, as long as veto not exercised in “abusive” manner: Tribunal

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A federal employee’s objection to the appointment of a workplace violence investigator was valid, the Occupational Health and Safety Tribunal Canada has decided, because the investigator was not “seen by” the employee as impartial.  Although this decision legally affects only federally-regulated employers (those subject to the Canada Labour Code), it is likely of interest to provincially-regulated Canadian employers too.

The employee, Mr. Chartrand, claimed that he had been abused and harassed in the workplace.  Another employee claimed that Chartrand had himself engaged in workplace violence and harassment.

The investigator in Chartrand’s complaint decided that the complaint was “inadmissible” and that it was impossible for him to confirm whether the alleged actions had taken place.  Chartrand asserted that the investigator was impartial because he did not meet with the witnesses that Chartrand had referred to him.  A different investigator in the second complaint concluded that the complaint against Chartrand was justified.

The Canada Occupational Health and Safety Regulations require, in section 20.9, that if the parties are unable to resolve a workplace violence complaint, the employer must appoint a “competent person” to investigate who is “impartial and is seen by the parties to be impartial“.

The Tribunal stated:

[55]           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.

[56]           From this it can be inferred that the legislator considered it vital that the parties agree on the impartiality of the person designated to conduct the investigation whose objectives are described in subsection 20.9(3) and et seq. of the Regulations. There is no doubt that the objective sought by the legislator is to ensure the credibility of the recommendations that this person must provide at the end of the investigation and to promote their acceptance by all of the parties involved.

The Tribunal decided that it is up to the employer to appoint a “competent person” to investigate but that person’s impartiality must be genuine and seen as such by the parties.  The employee’s refusal to agree that an investigator was impartial need not be “substantiated and justified” but it must not be abusive.

The Tribunal noted that an “abusive or discriminatory” approach by an employee in the selection of an “impartial” investigator could lead to discipline against the employee or be interpreted as a waiver of the employee’s rights to have a competent person appointed under the Canada Labour Code to conduct an investigation into workplace harassment or violence.

The Tribunal decided that Chartrand had not abused his rights in this case.  The Tribunal noted that Chartrand was at the centre of a number of disputes with his employer, and this could explain his distrust of the employer’s representatives and his belief that the investigation would be harmful to him from the outset.

Maritime Employers Association v. Longshoremen’s Union, CUPE, Local 375, 2016 OHSTC 14 (CanLII)