The Tail Wags the Dog: Federal Sector Employee Vetoes Employer`s Appointment of Investigator

The integration of workplace violence and harassment protections into occupational health and safety legislation has been a theme in Canada for more than half a decade.  Although in Ontario most attention has been paid to significant amendments to the Occupational Health and Safety Act, such as Bill 168 and the more recent Bill 132, legislation in other jurisdictions has also been amended to include provisions dealing with harassment and violence in the workplace.

The federal jurisdiction has enacted some of the most significant reforms.  The Canada Labour Code has regimented requirements for an employer dealing with a harassment complaint that go beyond what is seen in Ontario legislation.  The Code sets out specific procedures and requirements that require specific investigative steps and processes to be implemented by employers in certain situations.  In such instances, the Code requires that an employer appoint a person to investigate a complaint who is “seen by the parties to be impartial.”

A recent case brought into question whether an employee objecting to the appointment of an investigator due to their perceived impartiality is under an onus to justify their position.

In Maritime Employers’ Association v CUPE, the complainant had made a complaint of harassment against a co-worker.  The employer appointed a consultant with which it was affiliated to investigate the allegations.  The complainant objected to that appointment, stating that he did not view the investigator as impartial.  The complainant alleged that due to previous discipline he had received from the employer, he would not consider anyone from the employer as impartial and demanded that a third party investigator is appointed.  The employer refused.

Ultimately, the employee filed a complaint with the federal Ministry of Labour.  The Ministry of Labour issued orders requiring that the employer appoint a third party investigator seen by the parties as impartial, effectively upholding the employee`s objection to the appointed investigator.

The employer appealed the Ministry`s orders to the Occupational Health and Safety Tribunal Canada.

The employer argued that the question of impartiality must be assessed on an objective basis.  In other words, the question ought to be whether a reasonable person would consider the investigator to be impartial, as opposed to a subjective test that would assess whether the particular party considered the investigator to be impartial.  The employer argued that its interpretation was the only one that would prevent employees from abusing the provision so as to dictate who could conduct an investigation.

The employee asserted that he did not have to justify his subjective opinion that the investigator appointed was not impartial.  In any event, he said that he had justified that opinion on the basis that he perceived any representative of the employer as biased due to his previous disciplinary history.

The Tribunal determined that the words of the legislature meant that the parties had to subjectively agree that the investigator was impartial.  It held that the legislature’s words intended that the assessment of impartiality by the parties was to be subjective, and that it would be improper and contrary to the section to apply an objective standard.

The Tribunal also examined cases in which the objective test was used, such as when a judge or adjudicator is accused of appearing biased.  However, it found that that case law was not applicable to this section of the Code.

The Tribunal addressed the argument put forward by the employer that an employee could simply abuse this provision to block the appointment of investigators on the basis that they were suggested that an abuse of this process by an employee could be tantamount to a waiver of the right to an investigator mutually agreed upon by the parties as impartial.  However, the Tribunal did not suggest how this might be proven or might be effective in practice.

What Employers Should Know

Employers in the federal sector must be aware that, in meeting their obligations under the Code, employees have a wide subjective latitude to reject the appointment of investigators as biased.  An employee need not provide any reasons for their rejection of an investigator, and an employer likely only has recourse in cases where the rejection is clearly not in good faith.  Proving bad faith is particularly difficult.  This could lead to significantly more cost for employers, particularly in a case such as this one where the wholesale rejection of any member of the employer as an investigator would require the expensive step of retaining an external investigator.

The agreement of an employee to appoint an investigator is not a requirement under the Ontario Occupational Health and Safety Act, even after the amendments introduced in Bill 132.  In fact, there is no requirement in the Occupational Health and Safety Act that a third party investigator ever be appointed in the context of a harassment complaint.

However, the new amendments allow an employee to complain to the Ministry of Labour if there is an alleged breach of a harassment policy because of the appointment of an investigator.  An inspector from the Ministry can then order the appointment of an investigator, which may be an expensive step.  As there are no reported decisions involving a Ministry of Labour inspector issuing an order to appoint a third party investigator, we do not yet have any guidance as to what factors may be involved in their exercise of this power.  However, this case suggests that, if the Ministry looks to the federal sector for guidance, employees’ complaints about the investigators appointed to look into harassment complaints may not be subject to the scrutiny that one might expect.

It is important to note that as employer responses to harassment become more and more enshrined in legislation, there is less flexibility and control for employers to assure that they can effectively manage the investigation process.  This decision continues this trend and further erodes the ability of federal sector employers to respond in a flexible way to complaints of employee misconduct.

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