Because a worker who filed a complaint against an employer had not agreed that a manager was impartial, the Federal Court of Canada has held that said manager was not a “competent person” to conduct an investigation into workplace harassment under the Canada Labour Code.
The worker, who was an employee of the Canadian Food Inspection Agency (CFIA), filed a written complaint that alleged harassment by a supervisor, in the form of “miscommunication, favouritism, humiliation, unfair treatment and a lack of respect.” That complaint was filed in December 2011.
In response to the complaint, the CFIA assigned a manager with the task of conducting a “fact-finding” review of the issues that had been raised in the complaint. The manager undertook an investigation of the matter and came to the conclusion that, while there were certainly communication issues and there was some unresolved tension, there was no evidence of harassment.
After reading that conclusion, the worker then contacted a federal Health and Safety Officer (HSO) and alleged that the manager who conducted the investigation was not impartial enough to have conducted such an investigation. In response, the HSO issued a Directive to the CFIA, requiring that they appoint an impartial person to investigate the issues in the complaint, pursuant to the Canada Labour Code.
Dissatisfied, the CFIA then appealed that Directive to an Appeals Officer of the Occupational Health and Safety Tribunal of Canada, which took the CFIA’s side. It was then that the worker then appealed to the Federal Court of Canada, which took note that the Canada Labour Code sets out specific procedural protocols that an employer must follow when there is a complaint of “workplace violence.” They also noted that “harassment may constitute workplace violence, depending on the circumstances,” such as when a proper investigation of a harassment complaint by a competent person determines that the harassment could result in harm or illness to the employee.
The court then pointed out the definition of “competent person” to conduct a workplace violence investigation requires that such a person have the necessary knowledge, training and experience and that he or she is “impartial and is seen by (all) parties to be impartial.” Because the employee who filed the complaint did not agree that the manager was impartial, he was, by legal definition, not a “competent person” to conduct the investigation. That meant the manager’s investigation couldn’t be used and sent the complaint back to the Appeals Officer for re-determination of the issues.