Appeals officer’s conclusion that employer could screen out complaints it considered unrelated to workplace violence was unreasonable

OCCUPATIONAL HEALTH AND SAFETY

Appeals officer’s conclusion that employer could screen out complaints it considered unrelated to workplace violence was unreasonable

Employee made workplace violence complaint. Employer undertook fact-finding process to review employee’s concerns and determine whether investigation was warranted. Employer concluded that allegations in complaint did not constitute harassment and did not warrant investigation. Employee was concerned that employer had really conducted investigation without selecting impartial, competent person within meaning of Canada Occupational Health and Safety Regulations. Health and safety officer issued direction that employer failed to appoint competent person as required by s. 20.9(3) of regulations. Appeals officer allowed employer’s appeal and set aside direction. Appeals officer found allegations in complaint did not raise workplace violence and employer had not been made aware of alleged workplace violence. Employee applied for judicial review. Application judge found that pre-screening of complaint must be limited to fact-finding for purposes of resolving dispute with employee. Application judge found employer effectively conducted investigation within fact-finding process, which it did not have authority to do. Application judge found appeals officer’s decision was unreasonable. Employer appealed. Appeal dismissed. Employer was not entitled to unilaterally determine whether conduct complained of constituted workplace violence before being required to appoint competent person to investigate matter pursuant to s. 20.9 of regulations. Appeals officer’s conclusion that employer could screen out complaints it considered unrelated to workplace violence was unreasonable. Unfettered discretion to employers to determine whether complaint warranted investigation by competent person could not be read into s. 20.9(3). Employee had right to impartial investigation of complaint. Application judge did not err in finding appeals officer’s decision fell outside scope of possible, acceptable outcomes. Employer must appoint competent person to investigate when matter could not be resolved with employee, absent situation where it was plain and obvious that allegations fell outside scope of definition of workplace violence. It was not plain and obvious facts alleged did not amount to workplace violence. It was not employer’s role at early stage to decide that conduct alleged was not serious enough to constitute workplace violence. Determination should be made by competent person following investigation.
Canada (Attorney General) v. PSAC (Nov. 30, 2015, F.C.A., J.D. Denis Pelletier J.A., D.G. Near J.A., and Yves de Montigny J.A., File No. A-544-14) Decision at 248 A.C.W.S. (3d) 355 was affirmed.  261 A.C.W.S. (3d) 344.