February 22, 2022
- What criteria are used in appointing an investigator to undertake a workplace violence investigation?
Section 28(1) of the Work Place Harassment and Violence Prevention Regulations (Regulations) provides the basic qualifications that an investigator must meet by law. To bring further clarity to the Regulations, the following knowledge, training and experience should be considered:- Have knowledge of the Canada Labour Code – Part II (the Code), the Workplace Harassment and Violence Prevention Regulations, and the Canadian Human Rights Act (CHRA);
- Have training in investigative techniques;
- Have experience in conducting inspections, investigations or audits; and
- Have experience in conducting workplace harassment and/or violence investigations.
Further knowledge, training and experience relevant to workplace harassment and violence could be considered including and taking into account organizational context or case-specific requirements. Consideration for equity and diversity requirements such as knowledge of cultural differences should be made based on individual case/parties’ needs as a best practice.
Another key consideration is that the employer, in consultation with the policy health and safety committee, workplace health and safety committee or representative, as applicable, establish a list of investigators in advance that can be drawn from as needed. This joint activity serves to reassure employees that an investigator on the list meets the requirements established under law. - What type of knowledge should the “investigator” have?
When the employer is appointing an investigator, knowledge should include, but not be limited to, knowledge of the: Canada Occupational Health and Safety Regulations, the Canada Labour Code – Part II – Occupational Health and Safety, the CHRA, and how to conduct and write a root cause analysis.
Specific knowledge of “Preventative Measures” should be considered as one cannot make sound recommendations to prevent a reoccurrence of workplace harassment and violence should they not be familiar with the various factors, assessment and prevention measures. - What are the essential elements of an Investigative Report?
The components of a fulsome, but concise, investigative report should ideally include:- A summary of the investigative findings;
- An analysis of the root cause of the incident, including enough evidence to support the identified root cause; and
- Recommendations for controls and preventative measures.
A sample report template can be found in Appendix A of the NJC Statement of Work – Work Place Harassment and Violence Investigation – 2021-3 - What type of involvement should policy committees have with respect to harassment and violence prevention in the workplace?
The Regulations are clear that policy committees or, if there is no policy committee, the work place committee or the health and safety representative, should be consulted and participate in all areas related to harassment and violence prevention in the workplace from developing a policy and procedures to investigations and training. This requirement includes consultation on the development of a list of investigators either internal or external to the organization that can be used to select an investigator.
The local workplace committee is involved in the follow-up to ensure that the recommended controls to prevent a recurrence of workplace harassment and violence are implemented. - What if there is no list developed between the policy committee and the employer from which an investigator can be selected?
If there is no pre-developed list, the parties (principal party, responding party, and designated recipient (DR) or employer) must agree on the selection of the proposed investigator to investigate the occurrence(s) keeping in mind that the selected investigator must meet the criteria under Regulation 28 (1).
In the federal public service, parties must follow procurement requirements to source for potential investigators, including considering the National Master Standing Offer (NMSO) first.
If the parties cannot agree on the selection of an investigator within 60 days of being notified that an investigation will occur by either the designated recipient or the employer, an investigator must be selected from those that appear on the list developed by the Canadian Centre for Occupational Health and Safety (CCOHS).
Consideration for equity and diversity requirements such as knowledge of cultural differences when selecting from any list of investigators and use of the appropriate diversity tags from the CCOHS list should be made based on individual case/parties’ needs as a best practice.
That list can be found here: https://investigator-enqueteur.ccohs-cchst.ca/ - Do parties to the occurrence have the right to “support” during the process?
Any party to the complaint has the right to support during the process, including but not limited to, Bargaining Agent support. This can be any person other than another party or witness. - Parts 23 & 24 of the Regulations speak to negotiated resolution and conciliation. What does this mean?
Early resolution with respect to violence in the workplace refers to an employer representative meeting with the party to the complaint to determine the nature of the issue and identify whether or not there may be an opportunity to resolve the matter. The review should focus on determining how the employee’s concern can best be resolved and the measures that may be necessary to prevent a recurrence as quickly as possible.
The use of problem-resolution mechanisms - such as coaching, mediation, counselling and facilitated discussion can often resolve the issue and prevent similar occurrences from happening. These mechanisms are what is intended by this conciliation step. - At what point can the process move from conciliation to investigation?
Reasonable effort by all parties must be undertaken to try to resolve the issue prior to an investigation being launched. The principal party does have the ultimate choice to proceed to investigation by notifying the DR or employer that they wish an investigation to be conducted. In coming to this decision, the principal party must decide if conciliation is not appropriate or unsuccessful and should take into consideration any views/considerations being raised by the DR on options to resolve. The DR should be in consultation with the conciliator to monitor the productiveness and the timeliness of any negotiated resolution.
The advantage of conciliation is that it puts the control of the outcome in the hands of the parties directly involved in the occurrence. In other words, the parties with a vested interest in the outcome are provided the opportunity to bring closure to the issue between them, perhaps restoring their on-going working relationship, without having a resolution imposed on them by a third-party via an investigation. - Do I have a right to participate in the official language of my choice during the resolution process?
Yes, the same rights under the Official Languages Act apply during the resolution process. This is particularly important given the emotional impacts of such conversations and to ensure that the participants are comfortable using their official language of choice. - What if a party is on leave or left the department or agency, how do you proceed with resolution within the prescribed timelines and in a timely manner?
The DR will assess on a case-by-case basis. However, an absence should not be viewed as stopping or placing the resolution process in abeyance.
Options should be explored such as contacting a party directly about willingness and ability to proceed, medical consent/fitness to proceed, if required, requesting Bargaining Agent assistance, etc.
If the parties are working for two different departments or agencies, then the Directive on the Prevention and Resolution of Workplace Harassment and Violence should be consulted: Directive on the Prevention and Resolution of Workplace Harassment and Violence- Canada.ca (tbs-sct.gc.ca)
Further guidance and information on any topic related to Workplace Harassment and Violence Prevention can always be sought from the Office of the Chief Human Resources Officer (OCHRO) TBS-OHS Team at ohs-tbs@tbs-sct.gc.ca - I am seeking a personal remedy as result of the harassment and violence in the work place I experienced. Should I be filing a complaint in accordance with the Work Place Harassment and Violence Prevention Regulations ?
The intent of the Regulations is to investigate the occurrence in order to identify what controls can be put in place to prevent a recurrence of the work place harassment and violence (i.e. institute preventative measures). There is no personal remedy provided under this Regulation.
Should you be seeking personal remedy, there are many other avenues. It is recommended that you contact your HR representative or union representative for guidance. - What recourse is available if you, as either the principal or responding party, are not satisfied with the conclusions or recommendations in the investigator’s report?
There is no appeal process under the Code or Regulations.