Investigations under the Canada Labour Code
May 12, 2022
In force as of January 1, 2021, the Workplace Harassment and Violence Prevention Regulations (Regulation) outline the procedures that must be in place to respond to incidents of harassment and violence in federally regulated work places.
The Regulation applies to all work places that are regulated by the Canada Labour Code. In addition to branches, agencies, and ministries of the federal government, federally regulated work places include First Nations Band Councils, banks, telecommunications companies, air transportation, and inter-provincial travel and transportation, including railways.
Getting the process started – Who are the parties? Who can initiate a complaint?
The Regulation requires an employer to designate a person or a work unit/division to receive harassment complaints and coordinate the complaint process. This person is defined under the Regulation as the designated recipient.
The individual who was allegedly targeted or subjected to the harassment or violence is called the principal party, and the person alleged to have been responsible for the harassment or violence is the responding party.
A principal party can make a complaint on their own behalf, or a third party witness can make the complaint on behalf of the principal party. If a witness brings the complaint forward, the witness can remain anonymous, but the principal party cannot.
Former employees are also permitted to bring a complaint forward, but have to do so within three months of the end of their employment.
Under the Regulation, a complaint is called a notice of an occurrence. The complaint resolution process is engaged when a notice of an occurrence is provided to an employer or the designated recipient.
The notice of an occurrence must contain the name of the principal party(ies) and the responding party(ies), if known; the date of the occurrence; and a detailed description of the occurrence. If the principal or responding party is the employer, the notice must be provided to the designated recipient.
Informing the parties
Within seven days of receiving a notice of an occurrence, the employer or designated recipient must contact the principal party informing them:
- that their notice has been received or that they have been named or identified as the principal party in notice provided by a witness;
- how to access the work place harassment and violence prevention policy;
- each step of the resolution process; and
- that they may have representation during the process
If the notice of an occurrence is provided by a witness who is not anonymous, an employer or designated recipient must contact the witness within that same seven-day window to acknowledge that the notice was received.
Finally, when an employer or designated recipient first contacts the responding party about the occurrence, they must provide the responding party the same information that was provided to the principal party.
Principal party can end the process
Under the Regulation, the principal party has the right to end the complaint resolution process at any time by informing the employer or designated recipient that they choose not to continue with the process. This is a significant difference from most provincial legislation, in which the employer can (and sometimes must) investigate incidents of harassment regardless of whether the complainant or alleged target wants to proceed.
Informal resolution options
The principal party and the employer must try to negotiate a resolution to the notice of an occurrence. If the responding party has been notified, they must also participate in the negotiation. Naturally, a negotiated resolution that might affect the responding party cannot be reached without the responding party’s involvement.
Another informal resolution option provided by the Regulation is conciliation. In conciliation, a third party conciliator or mediator works with the parties to help them resolve their dispute. Unlike negotiated resolution, which is mandatory, conciliation happens only if both parties voluntarily agree to it and agree upon who the conciliator will be.
If an occurrence is not resolved by negotiated resolution or conciliation, an investigation of the occurrence must be carried out if the principal party requests it. The employer or designated recipient must provide the principal and responding party with notice that an investigation will be carried out.
Who should do the investigation?
The Regulation restricts who can be assigned as the investigator. It’s expected that the employer and work place health and safety committee will jointly develop a list of investigators. When a notice of occurrence is brought forward, the employer can assign any investigator on the joint list to investigate the occurrence.
If there is no joint list, then the employer must either assign an investigator who both parties have agreed upon, or an investigator from a roster maintained the by the Canadian Centre for Occupational Health and Safety.
The investigator must be trained, knowledgeable and declare themselves to be free of conflict of interest in respect of the investigation. The investigator is also required to provide the parties with a statement of qualifications which includes:
- their name and job title;
- their employer and manager’s name;
- a description of their knowledge, training, and experience; and
- a description of any experience that is relevant to the nature of the occurrence
The investigation report – time limits and content
The Regulation requires that the entire resolution process including the investigation must be completed within a year of the notice of an occurrence being provided. If a party is absent from work for more than 90 days, the deadline is extended until six months after they return.
The parties must also be provided monthly status updates after the process has been started.
The Regulation requires that the investigator’s report include:
- a general description of the occurrence;
- their conclusions, including those related to the circumstances in the work place that contributed to the occurrence; and
- their recommendations to eliminate or minimize the risk of a similar occurrence
The employer must provide a copy of the investigator’s report to the principal party, responding party, and the work place committee or health and safety representative, along with the designated recipient. Because the parties and the work place health and safety committee or representative will see the report, the Regulation also requires the report to not contain any information that could identify the individuals involved in the occurrence.
Discussing and implementing the investigator’s recommendations
After the investigation is complete, the employer and the work place health and safety committee or representative must jointly agree upon which recommendations in the report will be implemented. The employer must then implement everything that has been agreed upon.
If the employer and the work place health and safety committee/representative disagree about whether a particular recommendation should be implemented, the employer has the final say. But in this case, the employer must provide a written explanation for its decision to implement or not implement the recommendation.