On November 30, 2015, in Attorney General of Canada v PSAC, 2015 FCA 273, the Federal Court of Appeal dismissed the Government’s appeal of the decision of the Federal Court rendered last year. The case dealt with Part XX of the Canada Occupational Health and Safety Regulations, which imposes a host of obligations on employers to prevent and respond to workplace violence. The Court’s decision affirmed the broad definition of workplace violence under the Regulations, and the mandatory obligations on employers to appoint an impartial person to investigate employee complaints.
The Court of Appeal adopted the approach of the Federal Court judge, and held that an employer does not have unfettered discretion to determine whether a workplace violence complaint warrants an independent investigation: “I agree with the Respondent that allowing the employers to conduct their own investigations into complaints of work place violence and to reach their own determination as to whether such complaints deserve to be investigated by a competent person would make a mockery of the regulatory scheme and effectively nullify the employees’ right to an impartial investigation of their complaints with a view to preventing further instances of violence.”
The Court found that employers can only decline to appoint a competent person to investigate if it is plain and obvious that the complaint does not raise allegations of workplace violence on its face. The Court emphasized that the “employer has very little discretion in this respect.” This judgment affirms the right of employees to an impartial investigation when they experience psychological harassment or other forms of violence in the workplace.