On September 17, 2020, Andrew Astritis spoke at the Osgoode Hall Professional Development conference on Class Actions: Critical and Emerging Issues. Andrew participated in the panel on “#MeToo Comes to Class Actions”.
Andrew is part of the team at RavenLaw that has been representing current and former members of the Canadian Armed Forces in the class action involving sexual misconduct in the military, which was settled in 2019.
Ravenlaw gratefully acknowledges the contribution of this post by articling student Karen Sisson.
A recent decision of the Ontario Arbitration Board affirms the employee’s right to a hearing for grievances related to systemic issues in the workplace, even where the issue may appear to be moot.
In the 2020 CAS v CUPE[1] decision, the employer had made a motion to dismiss an employee’s 2016 grievances, which alleged an incident of workplace harassment as well as a failure to meet obligations under the Collective Agreement pertaining to accommodation.
The Grievor in this matter had made an allegation of harassment against a supervisor. The incident was alleged to have occurred during discussions about the Grievor’s accommodated return to work plan. Following the filing of the grievance in 2016, a workplace remedy was applied wherein the employer agreed that the Grievor would no longer be supervised by that particular supervisor. The employer also agreed to review expectations with respect to return to work planning with all supervisors.
The Grievor and the employer continued to engage in negotiations for a return to work plan, but no plan was ever agreed to. The Grievor filed an additional grievance, alleging that the employer had failed to meet their accommodation obligations under the Collective Agreement. Both grievances were filed in 2016. At the time of the Hearing in 2020, there were no new reports or concerns with respect to harassment, and the Grievor had successfully returned to their full-time position.
The employer brought a motion to dismiss the employee’s grievances, relying on the fact that they had already engaged an adequate remedy, and the grievance was thus out of scope of the Arbitration Board. There had been no further issues raised since the grievances were filed in 2016. The employer argued that the “fact specific” nature of the grievances meant that the issues were now moot, and there was no benefit to the ongoing relationship of the parties to pursue further resolution. The employer alleged that a hearing on the grievances would “dredge up controversy and conflict at great expense”, potentially having a detrimental impact on ongoing labour relations, and on the Grievor.
In reply, the Union highlighted that an allegation of harassment in the workplace is a live issue which requires a formal resolution. The passage of time should not be relied on to “wash away” the fact of the allegation. Furthermore, a resolution of the grievance alleging a failure to accommodate the Grievor would assist the parties in their application of the Collective Agreement. The Union also highlighted that the Grievor may be entitled to damages to compensate for the harm they suffered because of the alleged harassment.
In its decision, the Arbitration Board explicitly stated that the doctrine of mootness applied in the context of criminal and civil matters is not applicable in the same manner to labour relations. Citing a prior decision in the analysis, Sherbrooke Community Society v SUN Local 22[2], the Board stressed that “The parties before an arbitrator, by definition, must continue to live together in a work relationship under a collective agreement… once a systemic issue is raised by a particular grievor, it does not simply disappear, due to a change in that particular person’s individual circumstance”.
The Board declined to follow earlier decisions where the doctrine of mootness had been applied, distinguishing the grievances in this matter on the grounds that these grievances raised more complex issues than those raised in the prior decisions. The Board also emphasized the significant evolution in the last 15 years regarding damages involving harassment and/or violations of the Human Rights Code. While the Grievor had successfully returned to work since the grievance had been filed, the question of whether the accommodation plans were adequate, or adequately adhered to in the workplace, remained a live issue.
With respect to the allegation of harassment, the Board unequivocally found that the efforts of the employer to remedy the issue in the workplace did not resolve the grievance. Actions taken by the employer in response to the allegation were relevant to quantifying potential damages, but they did not adequately meet the labour relations purposes served via a hearing on the issue. A hearing on the issue would provide instruction to the parties about how similar situations can or should be dealt with in the future.
Given these observations, the Board found that “The underlying questions about the substance of the Grievor’s allegations remain alive and require resolution, for her sake and for the sake of the parties’ understanding of their rights under the Code and the Collective Agreement”. Absent a mutual agreement with the consent of both parties, the case was not one where it would be appropriate to halt the proceedings.
This decision is significant for its recognition that an employee’s right to remedy for potential breaches of the Human Rights Code cannot be said to have disappeared via the passage of time. The resolution of systemic issues is a vital component of labour relations, and an employer can not escape the potential application of a remedy via a hearing by the Arbitration Board on such matters.
[1] The children’s Aid Society of Toronto and The Canadian Union of Public Employees and its local 2316, 2020 CanLII 34509 (ON LA).
[2] Sherbrooke Community Society v SUN Local 22, 2 L.A.C. (3d) 97 (Norman).
Ravenlaw gratefully acknowledges the contribution of this post by articling student Simcha Walfish.
Although we may live and work in “unprecedented” times, your rights to unionize your workplace have not changed. In several cases across the country, labour relations boards have rejected employers’ claims that the COVID-19 pandemic is no time to unionize. Even where it is unsafe to hold an in-person vote, the staff was laid off, or the employer is facing economic difficulties, boards have been clear that employees’ rights to collective bargaining are not on hold.
a) You can unionize even though it isn’t safe to hold an in-person certification vote
The Ontario Labour Relations Board has repeatedly ruled that the danger of in-person voting during the COVID-19 pandemic does not mean that certification votes should be delayed. In one case, the employer, a waste management company, argued that the Board should hold an in-person vote at its premises, over a single polling period of three hours. It claimed that its employees might not have the technology or skills to vote electronically. It suggested that if the Board was concerned about the safety of an in-person vote, the vote should be delayed until it is safe.
The Board rejected these arguments. While it found that an in-person vote would be unsafe and violate regulations, there was no reason not to hold an electronic vote because “employees have a right to determine whether or not they wish to be represented in their employment and to do so as soon as the electronic vote can be arranged.” Further, the electronic vote was not too difficult for employees to access and could be done by phone or computer.
In a similar case, the OLRB reasoned that delaying the vote until after the state of emergency is lifted could delay certification by months, “which would be prejudicial to the applicant and the affected employees.”
b) You may be able to unionize even though you and your coworkers were laid off
In a case from British Columbia, a theatre company argued that its employees could not unionize because it had laid them all off due to the pandemic.
The Board noted that, generally, employees who were laid off after an application can vote and those who were laid off before cannot. However, these are exceptional circumstances. The theatre had three categories of workers: regular full-time, regular part-time, and casual employees. The Board held that the test for whether employees who have been laid off can vote is whether they have a “sufficient continuing interest in the bargaining unit.”
The Board found that the regular full-time employees and regular part-time employees did have that connection and had not been laid off until after the application. Because of the timing of the layoff, they were eligible to vote.
Most of the regular part-time workers had been laid off before the application. Nonetheless, the Board found that they had a sufficient continuing interest in the bargaining unit. The Employer had emailed staff, committing to bringing as many people as possible back, as soon as possible. Although the Employer was not able to predict when it would reopen, it had not indicated that it would be ceasing operations. Because the closure was temporary, the Board found that “there is a continuing, tangible, felt relationship between the part-time employees and the Employer and a reasonable expectation of recall.”
However, the Board found that “the casual employees’ connection to the Employer was more tenuous.” They worked on an on-call basis and the Employer would only call them if their particular skill set would be useful for a production. They didn’t have the “reasonable expectation of recall” necessary to show that they had a sufficient continuing interest in the bargaining unit, and so were not eligible to vote.
Unfortunately for the employees, the fact that the casual employees were not eligible to vote meant that they didn’t have the support required to go forward with the application.
c) You can unionize even though your employer is experiencing economic uncertainty
In a case from the Alberta Labour Relations Board, an Employer in the not-for-profit childcare sector argued that the Board should not certify a bargaining agent during the COVID-19 pandemic due to the “business uncertainty” facing the Employer. It argued that unionization would increase its “administrative and financial burden” and set the collective bargaining process up to fail.
The Board soundly rejected this argument, finding no legal authority for the proposition that certification can be refused because of the employer’s economic circumstances. It rejected the Employer’s suggestion that we are in a “historically unique” situation. It found no precedent for refusing certification, despite the fact “the COVID-19 pandemic is not the first time in Alberta’s history when employers have faced significant, even existential, economic uncertainty.”
The Board noted that “the Code is clear: certification under the Code is an employee choice.” The Board concluded that, “put bluntly, the suggestion the Board should refuse to permit certification at times when an employer faces economic uncertainty is anathema to the purpose of the Code and its certification sections.” The Employer’s argument went against the basic principles of labour relations: “to ask why the Board would ‘bother’ with a certification in economic circumstances where that bargaining may be difficult takes a dim view of labour relations indeed.”
The Board reasoned that the Code creates a process for employees to freely select their bargaining agents in order to satisfy the constitutional requirements of “meaningful collective bargaining.” Nothing in the process asks whether the employer favours certification. It noted that while employers face difficult choices, so too do employees and “those uncertainties may well be a factor in employees making the choice, through the certification process, to pursue workplace goals through a bargaining agent at that time.”
In other words, while employers are facing difficult times, so are workers. And workers’ rights to unionize have not changed, even in these “unprecedented” times. Now, more than ever, may be a good time to unionize your workplace and face those uncertainties together.
The COVID-19 pandemic, its economic impact, and the recent protests regarding the systemic oppression of people of colour have all highlighted the need for robust protections for workers in Canada. As protests continue around the world, we must reflect on systemic racism in Canada. Throughout Canadian society, structural inequalities create vulnerability that manifests in precarious employment. Precarious employment has many definitions, but generally references employment that is uncertain, low paying, and with limited benefits and protections. If we hope to eliminate precarious employment, we need additional protections for workers.
Ontario Reduces Protections for Employees During the Pandemic
The early socio-demographic data in Ottawa shows that racialized groups and immigrants are over-represented in COVID-19 diagnoses compared to their relative population size. Diverse communities in Ottawa have rates of COVID-19 almost twice of those communities with the least diversity. Similar trends are being reported across the country. The economic effects of coronavirus are also being borne by precarious workers.
The existing legislation governing employment relationships in Canada does not prevent precarious employment. As a result, many employers rely on precarious employment as part of their business model. While there has been some progress in holding employers accountable, many businesses that form part of the ‘gig’ economy have exploited this model. We saw this recently with Foodora’s exit from Canada following an Ontario Labour Relations Board decision that would have allowed its employees to unionize.
While gaps already existed in employment legislation, some protections for workers have been removed in response to the COVID-19 pandemic. For example, the Ontario government recently amended the Employment Standards Act with a new regulation creating Infectious Disease Emergency Leave. This regulation essentially prevents employees from claiming constructive dismissal under the Employment Standards Act when their hours are reduced or eliminated for an extended period due to COVID-19.
Migrant Workers: A Case Study in Precarious Employment
While precarious employment can create vulnerability, it also compounds vulnerability that may already exist. The spread of COVID-19 within the migrant worker community is an example of compounded vulnerability: Migrant workers are an essential component of Ontario’s commercial agriculture, but they have long been a vulnerable and marginalized community as a result of several factors, including their immigration status, employment conditions, and exclusion from some labour relations legislation. In Ontario, agricultural workers are governed by a separate labour relations statute with fewer protections than the one that covers most Ontario employees. In late May 2020, an outbreak of COVID-19 began in southwestern Ontario, and by June, at least 187 migrant workers across southwestern Ontario had tested positive for COVID-19. By July, it was reported that almost 1,000 migrant farm workers have tested positive for COVID-19.
The Role of Unions in Preventing Precarious Employment
Marginalized communities are more likely to work in precarious, low-paying, and part-time employment. The data so far has shown that individuals with post-secondary education and high-earning dual income households are more likely to be able to work from home, therefore they have a lower likelihood of work interruption because of the pandemic.
One of the ways workers’ employment conditions can be protected is through unions. Unions can use the strength of a united collective to push for better working conditions, higher salaries, and job protections. The COVID-19 pandemic has shown just how important these rights are for workers. While some precarious workers are unionized, many are not.
You can learn more about employment rights and how labour organization movements have protected workers through the Canadian Human Rights Museum’s exhibit Rights on the Job, on now until October 2020.
What Now?
All workers have been impacted by the COVID-19 pandemic, whether they are on the front lines, risking their lives to protect and provide for their communities, working from home to help stop the spread of COVID-19, or have had their work hours reduced or eliminated. All workers deserve to be protected. No workers should have to rely on precarious employment.
As a community, we must better protect precarious workers. This can include supporting the labour movement, encouraging unionization, pushing legislators to adopt broader protections for workers, combatting structural inequalities, and engaging in these endeavours through an anti-racist lens. If you have questions about your specific employment situation, we encourage you to seek legal advice.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]
An employer must reimburse employee relocation expenses if it does not have specific evidence that it could have staffed a vacant position through other means, according to a recent Federal Public Sector Labour Relations and Employment Board decision.
The decision dealt with two grievances filed by Border Services Officers with the Canada Border Services Agency. Both employees had requested to move to a new city in order to fill a vacant position. Under the NJC Relocation Directive, employees who request a move to fill a vacant position are entitled to reimbursement for a wide range of relocation expenses, unless the employer can establish that it could have filled the vacant position without relocation expenses.
In both cases before the Board, the employer alleged that it could have filled the vacancies in issue with a freshly-trained recruit. At hearing, however, the employer’s witnesses testified that there were more vacancies than available recruits at the time of the grievances and that they had no way of knowing if the vacancies in issue would have, in fact, been filled if the grievors had not relocated.
The Board found that this evidence was insufficient to meet the employer’s obligation to prove that it could have filled the vacant positions without relocation expenses. As the Board concluded, the employer’s assertion that it could have filled the vacancies “must not be a hollow statement; there must be some facts behind it to back it up.” The Board therefore ordered that CBSA reimburse both grievors for their eligible relocation expenses, as the employer’s reason for refusing to do so was “without factual underpinning.”
The grievors and the Public Service Alliance of Canada were represented by Morgan Rowe.
On May 29, 2020, Ontario made new regulations under the Employment Standards Act, 2000 to address the legal effects of widespread layoffs. These layoffs arose both from employers having a lack of business and the need of many to take time off work due either to the direct or downstream effects of COVID-19 and the measures taken to lessen the spread of the coronavirus.
The Employment Standards Act, 2000 already allowed for emergency leave for employees who were infected, under mandated isolation, or caring for a close family member. The new regulations primarily provide new rights to employers who lay off employees due to coronavirus.
The regulations allow employers to avoid the temporary layoff provisions of the Employment Standards Act which convert a temporary layoff into a termination of employment after a certain time period has elapsed. The regulations provide relief from employers by converting the temporary layoff into infectious disease emergency leave as opposed to a termination. The regulations also allow employers to stop contributing to employee benefit plans while employees are on infectious disease emergency leave.
The regulations were released on May 29, 2020, meaning that employers who laid off employees in early March will be exempt from the application of the 13-week and 35-week thresholds required for a layoff to be deemed a termination of employment. They also deem any complaints that were filed with the Ministry of Labour alleging termination or severance of employment due to a reduction in hours caused by COVID-19 not to have been filed.
How do these new regulations affect my rights?
These new regulations primarily affect your ability to assert that your employer has constructively dismissed you by reducing your hours or not allowing you to work for an extended period of time due to COVID-19. The regulations are fairly clear that such a claim cannot be asserted against your employer with the Ministry of Labour Training and Skills Development Employment Standards Branch.
These regulations risk severely curtailing the remedies available to the some of the province’s most vulnerable workers who may face practical challenges to accessing court-ordered common-law remedies.
However, these regulations appear to only affect the Employment Standards Act, 2000, and not the common law which also provides entitlements for employees in certain situations. As a general rule, the Employment Standards Act, 2000 does not affect an employee’s ability to bring a common law claim against their employer. You may still be able to assert a constructive wrongful dismissal claim at common law if you have been laid off work or if there has been a reduction in your hours (to learn more about what you could claim, see What is Reasonable Notice?). In Popescu v Wittman Canada Inc the Ontario Superior Court confirmed that a constructive dismissal can occur despite the preconditions for constructive dismissal under the Employment Standards Act, 2000 not having been met, meaning it does not have to be a constructive dismissal under the Act to be a constructive dismissal at common law.
These new regulations may also influence the interpretation of existing employment contracts. It is possible that common-law courts will develop their own doctrines to deal with the impact of COVID-19 on employment contracts. Your ability to assert a constructive dismissal will depend heavily on the terms of your employment contract and your individual circumstances. You should seek legal advice before deciding what to do.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]
Many individuals have long term disability (LTD) benefit coverage through their employer. These are group policies that apply to all employees in the workplace. A group policy is a legal contract often containing technical language which may be difficult to understand. Insurance companies will use this technical language when denying or terminating long term disability benefits. We have identified some of the commonly used terms and have attempted to demystify them here for you. It is always important to remember, however, that this does not replace legal advice and if you have any questions about your policy or specific situation, you should contact an experienced long-term disability lawyer.
This is the amount of time an individual must be an employee before he or she can make a claim for LTD benefits. The qualifying period can vary depending on the policy.
This is the amount of time an individual must wait between the first day he or she is unable to work due to disability, usually the first day of sick leave, and the first day they are eligible to receive LTD benefits. The elimination period can vary depending on the policy. Individuals who do not have access to paid sick leave or short term disability benefits can apply for EI Sickness Benefits.
In order to qualify for LTD benefits, an individual must meet the definition of total disability in the contract. It does not mean that an individual must be absolutely physically or mentally incapable of doing anything related to her or his own occupation. At the outset, being totally disabled generally means that an individual is unable to perform the regular duties of her or his own occupation. In the majority of LTD group insurance policies, the definition of total disability changes 24 months after the end of the elimination period. At this point, in order to continue receiving LTD benefits, an individual must be unable to perform the duties of any occupation.
This is the work an individual performs at the time she or he becomes disabled. The insurance company does not look at the specific job, but the occupation in general. If the insurance policy defines total disability as being unable to perform the regular duties of your own occupation, an individual is not required to find employment in a different field even if she or he can perform other tasks that are not related to her or his own occupation. For example, a dentist would not be required to work as a clerk even if she or he can sit at a desk and use a computer.
As mentioned above, most insurance policies provide a change in the definition of total disability 24 months after the end of the elimination period. In order to continue to receive LTD benefits, an individual will be required to show that she or he is unable to perform the regular duties of any occupation. It will be important to refer to the terms of the insurance policy as any occupation may be further defined with additional language. Often policies will refer to any occupation for which an individual is reasonably qualified based on education, training or experience, or any occupation for which an individual may reasonably become qualified by education, training or experience. At this point, an individual may no longer qualify for LTD benefits if she or he can perform duties of another position for which they are qualified or can become qualified. For example, if the dentist could no longer physically work as a dentist, he or she may be qualified and able to teach courses.
If you are unable to work and are applying for LTD benefits or if your benefits have been denied or have been terminated, please contact an experienced long-term disability lawyer for advice.
We are here to help navigate the LTD application process. Consult one of our experienced disability lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a claim for disability benefits or if your claim for benefits has been denied.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]
If you’ve settled, or are in the process of settling, a legal case against your employer, you may have been asked to agree to what lawyers call a “non-disparagement clause”. These clauses come in many different forms but at their core, they all ask the individual employee to agree, going forward, not to “disparage” their employer or former employer. In fact, some go further and also prohibit individuals from disparaging other employees who are also employed by the employer.
But what does a non-disparagement clause actually mean, and what does an employee give up by agreeing to one?
On their face, non-disparagement clauses look severe. “To disparage” means to criticize or belittle someone or something or to represent them as being of little worth. Put simply, it means saying, doing, or writing something about someone that could cause a third-party to view that person in a negative way.
Disparagement is a lower standard than defamation. While defamation requires someone to have said something false and damaging, disparagement can also capture something that is true but still damaging.
Non-disparagement clauses can also apply to indirect actions, such as where an individual who has signed a non-disparagement agreement encourages someone else to make disparaging statements. Even statements made in later lawsuits have, in some cases, been found to be a breach of a prior non-disparagement agreement (see e.g. Antoncic v Ontario (Community Safety and Correctional Services)).
There are limits to non-disparagement clauses, however. An obvious but important limit is that non-disparagement clauses do not cover statements made before the clause was agreed to. This can be particularly important when the clause is agreed to as part of a settlement at the end of a long, combative legal fight, where both parties have likely already made negative statements about each other.
Another key limitation is that purely factual statements have often been found not to equal disparagement. For example, in Ibrahim v Hilton Toronto Hotel, the Human Rights Tribunal of Ontario found that a statement that an employee “lost his [human rights] case and did not receive a penny” was an incorrect summary of what had happened in the employee’s case but did not actually disparage the employee.
Other similar decisions have found that simply saying that a case was settled or that one person had sued another does not amount to disparagement. These decisions indicate that, where statements are factual and do not inherently imply anything negative about a party, they do not result in the breach of a non-disparagement clause.
Even though there are limits, once you agree to a non-disparagement clause, it is important to be careful to avoid violating that agreement. If a clause is breached, a decision-maker will often have the power to enforce the non-disparagement clause and award a remedy to the other party for the breach.
Many non-disparagement clauses will identify a specific penalty for a violation, such as returning any money that has been paid to you as part of the settlement.
Where no specific penalty is identified or where no money has been paid, a decision-maker will typically award general damages for the harm caused by the breach. The amount of damages will be determined on a case-by-case basis and will depend on the level of harm caused to the opposing party. In cases where no real harm has been caused, decision-makers have still awarded damages for the breach of the settlement agreement itself.
Although there are limits on what qualifies as “disparagement”, employees should think carefully when deciding whether to agree to a non-disparagement provision in a settlement. While these clauses will not harm employees in many cases, they will impact what employees can say about their employers or former employers, and it is important to fully understand that impact before signing off.
Where possible, employees should consider getting legal advice before agreeing to a non-disparagement clause or before taking any steps that they are worried might breach an existing clause. An employment lawyer may be able to help you negotiate different language for a non-disparagement provision or guide you on how to avoid an unintended breach.
News publications have officially declared the “death of the office”, as most of us adjust to the realities of working from home. While working from home, often referred to as telework or telecommuting, had been steadily increasing in recent years, the amount of people working from home has obviously exploded in response to the COVID-19 pandemic. With unprecedented numbers of employees working from somewhere other than their employer’s physical premises, an important question arises: if you are injured while working at home, is that injury covered by workers’ compensation?
Surprisingly, given how common telework has become, the Ontario Workplace Safety and Insurance Board has not published a formal policy addressing injuries that arise while working at home. However, WSIB’s general law and policy, as well as its few cases adjudicating claims for telework injuries, confirm that an injury sustained while working at home will be treated like any other injury—all the circumstances will be considered to determine if the injury is work-related.
Ontario’s workers’ compensation legislation, the Workplace Safety and Insurance Act, only allows for compensation for accidents that occur on an employer’s premises. However, that term is defined very broadly, as “ the building, plant, or location in which the worker is entitled to be…” To be eligible for compensation, an accident must also have occurred while the worker was performing an act incidental to her work or employment obligations.
The Ontario Workplace Safety and Insurance Appeals Tribunal (WSIAT) has adjudicated very few claims for injuries sustained during telework. However, in the few cases it has decided, it has effectively taken for granted that a telework injury is not excluded from the workers’ compensation regime.
The WSIAT has granted compensation to workers who were injured in their home offices. For example, in 2019 ONWSIAT 1873, a customer service worker performed her job in her home office and developed carpal tunnel syndrome due to an increased workload. The WSIAT found that the claim had the necessary five points to be eligible for compensation: “an employer, a worker, personal work-related injury, proof of accident, and compatibility of diagnosis to accident history.”
This is similar to the approach taken by workers’ compensation boards in other jurisdictions. Some, like WorkSafeNB in New Brunswick, and the Workers’ Compensation Board – Alberta, have published policies or fact sheets specifically addressing when a telework injury will be considered eligible for benefits.
While telework injuries clearly can be eligible for workers’ compensation, the fact that your injury occurred while working from home may, in some cases, make it more difficult to establish that the injury is work-related. There are a wide variety of situations that are on the borderline between work and personal activities. That line between your work and personal life is likely even harder to define when you are working at home.
The Workers Compensation Appeals Tribunal of British Columbia commented on this difficulty in a 2010 decision:
…work activities and home life do not always occur in a clearly defined and distinct sequence. It might be that a worker is at one moment in the course of employment while in the home office, but at another moment in the role of homeowner when responding to a neighbor knocking at the front door. It is where an injury occurs in the transition between work life and personal life that coverage under the Act may be at its most complex.
So, while the fact that your injury occurred while working from home does not, in itself, disqualify you from workers’ compensation coverage, you may face added challenges in your claim, particularly if the injury occurred somewhere in that “transition” between your work life and your personal life. If you have such a borderline claim, you may want to receive advice and assistance from an employment lawyer.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]
A federal employer is required to appoint a competent person to investigate a workplace violence complaint, even if it believes the allegations in the complaint do not relate to or amount to workplace violence, according to a recent decision the Occupational Health and Safety Tribunal of Canada.
In this case, the worker had suffered through an accommodation process that he felt was inadequate. He believed that representatives of the employer, the Canada Food Inspection Agency, were deliberately holding up the process and interfering with accommodations granted to him in order to cause him harm. He also made general claims about bullying and harassment and alleged that employer representatives had raised their voices with him.
After meeting with the worker, the employer concluded that his complaint was not actually about workplace violence and decided not to appoint a competent person. Before the Tribunal, it argued that the employer could exercise a screening function and did not have to appoint an independent investigator to look into workplace violence claims that it felt were obviously unsupportable.
The Tribunal rejected this argument and confirmed that the employer’s role in a workplace violence process is limited to trying to facilitate a resolution of the complaint. Where that is not possible, the appointment of a competent person is required unless it is plain and obvious on the face of the complaint that it does not relate to workplace violence.
In the case before it, the Tribunal noted that it was enough that the worker’s complaints themselves explicitly referred to “workplace violence”. This language made it clear that the complaints “related to” workplace violence. The Tribunal also concluded that it was not plain and obvious that no finding of violence could ever be made if the worker’s allegations were investigated. The employer was therefore required to appoint an investigator.
This decision is further confirmation that the employer’s role in a workplace violence complaint is limited to attempting to facilitate resolution. The employer does not have any screening function and cannot examine the factual allegations in the complaint to determine if they can be proven. If the complaint cannot be resolved at an early stage, a competent, independent investigator must be appointed.
The Public Service Alliance of Canada was represented by Jessica Greenwood, with assistance from Zachary Rodgers.