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Making a list and checking it twice? Selecting an investigator in federally-regulated workplaces

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On January 1, 2021, new regulations will come into force that will amend the Canada Labour Code (Code) and change how harassment and violence investigations are to be conducted in federally-regulated workplaces.1 Among the changes are the provisions surrounding the selection of a workplace investigator. Under the new regulations, an employer can appoint an investigator from a list of investigators that the employer has jointly developed with its health and safety representative, workplace committee, or policy committee.Where an employer does not have such a list, the employer, the complainant, and the respondent must jointly agree on who will investigate the complainant’s concerns. If there is no agreement within 60 days, the employer may choose a person who has been vetted by the Canadian Centre for Occupational Health and Safety as having the necessary knowledge, training, and experience.

This blog post discusses a September 2020 case from the federal Occupational Health and Safety Tribunal. While the case proceeded under the current version of the Code, its extensive discussion on the selection of a workplace investigator provides guidance that federally-regulated employers may want to consider as they develop their list of investigators, or if they, come 2021, are faced with a situation of working with a complainant and a respondent to settle on a mutually agreeable investigator.

The Case

The Facts

The complainant in Canadian National Railway Company v. United Steelworkers 2 alleged that she had experienced workplace violence from her foreperson.  The employer appointed one of its senior managers to investigate the matter. Upon speaking with this senior manager, the complainant did not think that he was an impartial investigator. On that basis, she complained to the applicable federal department, Employment and Social Development Canada, that her employer had failed to address her workplace violence concerns.

A ministerial delegate with Employment and Social Development Canada received the complaint and directed the employer to provide the complainant with additional names of possible investigators.  The employer provided the names of two supervisors. The complainant rejected these two candidates. She also rejected the list of 10 other managers and/or supervisors that the employer next proposed.

The complainant indicated that she wanted an external investigator. The ministerial delegate next issued a direction requiring the employer to propose external investigators. The employer appealed this direction to the Occupational Health and Safety Tribunal (“Tribunal”).  The grounds of appeal were: 1) The complainant abused the process by rejecting all 13 of the employer’s proposed investigators; and 2) The ministerial delegate erred in directing the employer to propose external investigators.

The Decision

The Tribunal confirmed the ministerial delegate’s direction. In concluding that there was nothing “improper, erroneous or unreasonable” about the direction for the employer to propose external investigators, the Tribunal made the following points:

  • The complainant did not have to give reasons for rejecting the employer’s proposed investigator candidates.
  • The fact that the complainant rejected 13 proposed candidates does not necessarily indicate bad faith or abuse of the selection process. The 13 people were a “very homogenous” group of employees at the supervisory and/or managerial level, all of whom appeared to be male. Considering her less than positive interactions with managers when she first reported her complaint to her employer, it was not unreasonable for the complainant to have concerns about the impartiality of a supervisor and/or manager acting as an internal investigator.  In contrast, there may be stronger indication of abuse if a party entirely rejects a more diverse set of investigator candidates.
  • Even if a party has abused the process or acted in bad faith in rejecting the investigator candidates, a federally-regulated employer must still conduct an investigation and appoint an investigator with the qualifications outlined in the Code.
  • The employer’s concerns regarding the “broader economic and organizational effects” of the ministerial delegate’s direction to propose external investigators is misplaced. The delegate’s direction was based on the specifics of the complainant’s situation. The employer is free to propose internal investigator candidates in future situations.

Key Takeaways

Although the CNR case proceeded under the current version of the Code, the framework of ministerial delegate directions and the option to appeal those directions will continue under the new regulations.  What will be different is that the new regulations place greater weight on agreement in the process to select an investigator. Here are some points for federally-regulated employers to consider to facilitate agreement, taking into account the findings in the CNR case.

  • Have a list of qualified investigators. Develop this list with the health and safety representative, workplace committee, or policy committee.  An employer with such a list can select an investigator from that list without also needing the agreement of the complainant and the respondent. The list can include investigators from both within and outside of the organization.
  • Whether developing a list or working with the complainant and the respondent to settle on a mutually agreeable, qualified investigator, propose internal and external candidates from a diverse set of backgrounds and lived experiences. Factors to consider include gender, ethno-racial background, age, and sexual orientation.  When proposing internal investigators who are also employees of the organization, consider having people with a range of job roles and years with the organization.
  • The employer in CNR expressed concern about the costs of using an external investigator and setting an organizational precedent that all future investigations will be done by an external individual. Employers may wish to develop parameters or talking points to guide their decision-making and conversations on whether to go with an internal versus external investigator.

A federally-regulated employer’s responsibility to prevent harassment and violence in the workplace includes being prepared to call upon a vetted group of qualified investigators, should a complaint arise. That preparation, and the selection of an investigator who is accepted by all key stakeholders to an investigation, can go a long way towards building the complainant’s and respondent’s trust in the subsequent investigative process.

1 My colleague Veronica Howard has written an excellent 5-part series that describes the changes in detail. To see Veronica’s blog posts and Rubin Thomlinson’s other writings on Bill C-65, the federal anti-harassment and violence legislation, please go to: https://rubinthomlinson.com/category/bill-c65/

22020 OHSTC 6 [CNR].

Prepare Your Teams for Bill C-65

We have customized two of our courses to align with Bill C-65 and the changes that it will bring to how harassment and violence investigations are to be conducted in federally regulated workplaces.

Visit them below to learn more and register today!

Basic Workplace Investigation Techniques for Federally Regulated Workplaces under Bill C-65

Conducting Workplace Assessments for Federally Regulated Workplaces under Bill C-65