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Who do you choose? Workplace investigator selection in the Ontario and federal jurisdictions

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I can almost hear the whirr of printers in human resources departments across Ontario pumping out the recent Ministry of Labour “Code of Practice to Address Workplace Harassment under Ontario’s Occupational Health and Safety Act [OHSA]” (“the Code of Practice”). This Code of Practice will no doubt become the go-to manual for Ontario employers as they ensure compliance with the new workplace harassment laws which come into effect on September 8, 2016[1]. One of my clients compared waiting for the Code of Practice to staring at a pile of IKEA boxes, dreaming about her new chair, but having to wait for the instruction manual to put it all together.

The Ontario Model

In our last Workplace Investigation Alert, my colleague Megan Forward summarized what is in the Code of Practice. As a reminder, the new legislation significantly increases employer responsibilities by modifying the definition of what constitutes workplace harassment, and by imposing new obligations with respect to harassment policies, programs and investigations. The provisions of Bill 132 require that employers ensure that “an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances” (Paragraph 32.0.7 (1) (a)). The new legislation also allows an inspector from the Ministry to order an investigation “by an impartial person possessing such knowledge, experience or qualifications as are specified by the inspector ” (Section 55.3(1)).

For both employers and workers, a primary question will be whether or not investigations under paragraph 32.0.7 (1) (a) of the new legislation will be handled internally, or whether an external investigator will need to be brought in.

How will employers choose?

The Ontario legislation itself only directs that an investigation initiated and conducted by the employer be “appropriate”. The Ministry of Labour’s Code of Practice, Part III[2] instructs that in order to meet this threshold of “appropriate”,

  • the investigator must not be the alleged harasser, nor under the direct control of the alleged harasser, and
  • the investigator must be able to conduct an objective investigation.

Under Part IV of the Code of Practice[3]:

“Investigators[,] whether a manager, supervisor, human resources representative or a person designated by the employer, must receive information and instruction on how to conduct an investigation appropriate in the circumstances, including not to disclose identifying information unless it is necessary to conduct the investigation, take correction action or otherwise required by law.”

In summary, under the legislative and Code of Practice direction in Ontario, the investigator must be sufficiently removed from the alleged harasser’s direct control, be able to conduct an objective investigation, and must have received information and instruction on how to conduct an investigation appropriate in the circumstances.

Not surprisingly, this still leaves Ontario employers holding the instruction booklet on workplace investigations and wondering if they are missing a few vital nuts and bolts.

Is There Anything More in the Federal Manual?

Employers in the federal sector at least have a few more pages in their workplace investigation manual, thanks to a 2014 Federal Court decision which examined Section 20.9 of Part XX of the Occupational Health and Safety Regulations of the Canada Labour Code (the “Regulations”). Under this Section, the employer is required to appoint a “competent person” to investigate workplace violence[4] if an initial resolution is not successful.  A “competent person” is defined as someone who is impartial and seen to be impartial, has knowledge, training and expertise related to workplace violence, and has knowledge of the relevant legislation (Section 20.9 (1)).

The Federal Court in Public Service Alliance of Canada v. Canada (Attorney General), 2014 FC 1066 provided further direction on the identity of this “competent person”. In this case, an employee of the Canadian Food Inspection Agency (the “CFIA”) filed a complaint against his supervisor alleging miscommunication, favouritism, unfair treatment and lack of respect. The CFIA appointed a Regional Director to conduct a fact-finding review of these concerns; after his internal investigations, the Regional Director concluded that there was no evidence of harassment and that no further investigation was warranted. The employee and the employee’s union took the matter to a Health and Safety Officer (the “HSO”), who agreed with their position that the Regional Director did not meet the definition of a “competent person”, as he was not sufficiently impartial. The HSO issued a Direction to the CFIA to appoint an impartial competent person.This Direction was overturned by an Appeals Officer at the Occupational Health and Safety Tribunal of Canada (the “Tribunal”) and the HSO’s Direction was rescinded. The Appeals Officer’s decision was then judicially reviewed by the Federal Court.

One of the questions put to the Federal Court was whether or not an employer has the authority to investigate complaints of workplace violence as a “competent person”. The direction provided by the Court was that:

“Unless it is agreed by the employee and the employer that an employer’s representative is an impartial person, with all the attributes provided under section 20.9 (1), there is no reasonable basis to proceed with any investigation unless an impartial third party who is seen by the parties to be impartial to act as the competent person has been appointed.” 

In this case, because there was no agreement among the parties that the Regional Director was impartial, the Federal Court determined that he had no authority to conduct the investigation.

How will employment lawyers choose?

While Ontario employers are not bound by the 2014 Federal Court decision, it would be wise to follow its basic premise for selecting acceptable workplace investigators: that they are “impartial and seen by the parties to be impartial”, have the requisite knowledge, training and experience in issues relating to workplace violence, and knowledge of the relevant legislation. Where the employer is proposing an individual as its representative, the parties need to agree beforehand that the person is impartial.

This approach, dovetailed with the Ontario Code of Practice recommendations that the investigator be sufficiently removed from the alleged harasser’s direct control, be able to conduct an objective investigation, and must have received information and instruction on how to conduct an investigation appropriate in the circumstances, would be an excellent start in deciding who should conduct the investigation.

And, before employers start trying to find the separate instruction page which clearly shows whether or not the workplace investigator needs to be internal or external to the organization, I can assure you that the page doesn’t exist (even in the deluxe model). There are just too many factors and little pieces involved to prescribe one approach over the other.

In my investigation practice, I have seen situations where an internal investigator was the right decision, and I have also seen situations where an external investigator was clearly the best approach. Whether the decision is made to call an internal or external investigator, the key to a top-notch final investigation report is choosing an investigator that the parties agree is impartial, with the requisite knowledge, training and experience in the field of workplace investigations.

Jennifer White

[1] The preface to the Code of Practice is clear that compliance with the Code of Practice is only “one way in which employers can meet the legal requirements regarding workplace harassment” and that failure to comply with the provisions of the Code of Practice do not necessarily mean that the OHSA requirements have not been met. The instructions clarify that “determination about whether OHSA requirements have been met is made by the Ministry of Labour health and safety inspectors.”

[2] Part III (Employer’s Duties Concerning Workplace Harassment)

[3] Part IV (Providing Information and Instruction on a Workplace Harassment Policy and Program)

[4] Under Section 20.2 of the OHSA Regulations, “workplace violence” is defined as “any action, conduct, threat or gesture of a person towards an employee in their workplace that can reasonably be expected to cause harm, injury or illness to that employee.”

About the Author: Ottawa employment lawyer Jennifer White conducts workplace investigations into allegations of harassment and workplace violence, code of conduct violations, bullying, poisoned work environments, and other problematic workplace behaviour. Jennifer also provides workplace investigation and human rights training to staff at all levels.