Violence prevention in the work place - 943-1-IPG-081

Glossary of acronyms used in Interpretations, Policies and Guidelines documents

Code : Canada Labour Code, Part II
COHSR: Canada Occupational Health and Safety Regulations
CP: Competent person
ICRP: Internal Complaint Resolution Process
IPG: Interpretation, Policies and Guidelines
ODM: Official Delegated by the Minister
PHSC: Policy health and safety committee
Representative: Health and Safety Representative
WPHSC: Work place health and safety committee
WPV: Work Place Violence

1. Issue

To provide guidance on issues relating to Part XX of the Canada Occupational Health and Safety Regulations (COHSR), Violence Prevention in the Work Place, and to relevant provisions in other Regulations pursuant to the Canada Labour Code Part II.

2. Background

The purpose of Part II of the Canada Labour Code (Code) is to “prevent accidents and injury to health arising out of, linked with or occurring in the course of employment” at federally regulated work places. The reduction of all forms of violent incidents is critical to sustaining a healthy and safe work place. For this reason, paragraph 125(1)(z.16) of the Code requires employers to “take the prescribed steps to prevent and protect against violence in the work place.” Part XX of the COHSR, Violence Prevention in the Work Place, contains the prescribed steps that must be implemented.

The purpose of this Regulation is to ensure employers take measures to prevent and address violence in the work place as well as to protect employees from violence in the work place. The employer must also ensure that employees have access to assistance if they are exposed to violence in the work place.

When work place violence occurs, it is necessary for the employer to fully understand the circumstances involved, and then implement effective controls to mitigate the risk of future occurrences.

3. Determination of Work Place Violence (WPV)

3.1 What types of incidents are considered WPV?

Section 20.2 of the COHSR defines WPV as:

“…any action, conduct, threat or gesture of a person towards an employee in their work place that can reasonably be expected to cause harm, injury or illness to that employee.”

From this definition it is clear that WPV is not limited only to committed perpetuated by other employees. As long as the incidents occur in the complainant’s work place, members of the public, and even family members of the complainant may be sources of WPV.

However in these instances the investigation requirements of unresolved complaints are slightly different than if the WPV was committed by another employee.

Note 1: to avoid repeating, “harm, injury or illness”, hereafter this IPG will refer only to “harm” but it will be understood to also include “injury and illness”.

Note 2: The IPG frequently refers to an exposure to WPV as “an incident”. However, this is not to suggest that specific events must be assessed in isolation to determine if they constitute WPV. As such, “incident” should be understood to include multiple events, patterns of behavior, etc.

From this definition, it can also be inferred that, since threats or gestures typically do not include physical contact (and so cannot cause physical harm), then WPV must include incidents that result in only psychological harm. This interpretation was confirmed in the Federal Court of Appeal (FCA) decision 2015 FCA 273, Attorney General of Canada and Public Service Alliance of Canada;

[22]… Indeed there was no dispute before this Court and the Court below that work place violence may encompass harassment, and that psychological harassment can reasonably be expected to cause harm or injury in some circumstances.

The definition also requires that, for an incident to be considered WPV, there must be a reasonable expectation that it will cause harm to the employee (either physical or psychological).

3.2 What does “psychological harm” mean?

For the purposes of this IPG, a distinction must be made between psychologically affecting, and psychologically harming an employee.

An incident that makes the employee unhappy, dissatisfied or frustrated, but does not impair their ability to fully function in the work place or in their personal life, is one that only psychologically affects the employee.

In contrast, an incident that does impair an employee’s ability to fully function in the workplace or their personal life is one that psychologically harms the employee.

Incidents involving perceived unfair or discriminatory treatment would generally not be considered WPV. Complaints involving these types of labour relations, human resource, or human rights issues are generally more appropriately addressed by other legislation such as the Canadian Human Rights Act, or grievance provisions under a collective agreement. However, employees may concurrently pursue complaints alleging WPV via Part XX of the COHSR, even if they have also initiated a complaint under the Canadian Human Rights Act or a collective agreement.

3.3 Is harassment considered “Work Place Violence” as defined in Part XX of the COHSR?

“Harassment” is not defined or even mentioned in the COHSR. However, if the behavior alleged to be harassment falls within the definition of WPV, then it is WPV. Again this interpretation was confirmed in the previously referenced 2015 FCA 273 decision.

Paragraph 20.3(b) of the COHSR lists "bullying, teasing, and abusive and other aggressive behaviour" as "factors that contribute to work place violence".

Exposure to a contributing factor to WPV is not necessarily the same as exposure to WPV itself. For example, light hearted teasing would generally not be considered WPV if it was not intended to offend or demean an employee. However, despite the intent, if the employee perceives the behavior as WPV or a contributing factor to WPV, and raises the issue with the employer, the employer is required by subsection 20.9(2) of the COSHR to try and resolve it.

Specifically, employers are required by section 20.3 of the COHSR to develop control measures to protect employees from contributing factors to WPV, to prevent them from escalating into WPV. Control measures typically consist of policies prohibiting such behaviours, and recourse procedures.

3.4 How can it be determined if an employee has suffered WPV in the form of psychological harm?

Given the subjective and internal nature of psychological harm, it can be difficult to determine if an employee has suffered psychological harm as claimed.

Unless it is “plain and obvious” Footnote 1 that the incident does not meet the parameters of WPV described above, it must be assumed that it does, and the requirements of Part XX of the COHSR must be followed. This would include appointing a CP under subsection 20.9(3) to investigate any unresolved complaints of WPV.

Therefore, upon becoming aware of WPV or alleged WPV, employers should focus their efforts on trying to resolve the concern with the complainant under subsection 20.9(2) of the COHSR, with the understanding that if it is not resolved, a CP must be appointed to investigate.

4. What type of assistance is the employer required to provide as stated in paragraph 20.3(d) of the COHSR?

The employer must include the obligation to assist employees who have been exposed to WPV in their work place violence prevention policy. The problems experienced by the employee will dictate the type of assistance required. Assistance could take various forms such as an employee assistance or counselling program. In accordance with the employer’s duty under section 20.3 of the COHSR to dedicate sufficient resources to the prevention of WPV and to assist employees who have been exposed to WPV, the employer shall pay any reasonable costs associated with this type of assistance.

5. Is documentation required to be kept for sections 20.4, 20.5 and subsection 20.6(1) of the COHSR?

Part XX does not explicitly require documentation be kept for these steps. It is, however, strongly recommended that the employer maintains these documents. Not only will this assist in updating the violence prevention policy when required, it will also provide a history of steps taken and serve to strengthen an employer’s overall demonstration of due diligence. Therefore, it is recommended that the employer keep a written or electronic record of the steps taken to fulfill their obligations under sections 20.4, 20.5 and subsection 20.6(1) of the COHSR.

Such documentation may be provided by minutes of meetings held by the Policy Health and Safety Committee (PHSC) or the work place health and safety committee (WPHSC), or records of discussion of these issues with the health and safety representative (Representative), as applicable.

6. Who decides “whose disclosure is prohibited by law” and “unless notification is prohibited by law” in subsections 20.5(2), 20.8(4), 20.9(3) and paragraph 20.9(5)(b) of the COHSR?

It is the employer’s responsibility under subsection 20.5(2) of the COHSR, to determine whether the disclosure of information is prohibited by law when consulting with the PHSC, WPHSC, or Representative for the purpose of assessing the potential for workplace violence. Laws that may apply include the Privacy Act for federal government departments, and the Personal Information Protection and Electronic Documents Act for other organizations.

If the police investigate pursuant to subsection 20.8(4) of the COHSR, the employer must notify the WPHSC or the Representative of the police investigation, unless prohibited by law. The police may be consulted to determine if this notification is prohibited by law.

It is the employer’s responsibility to determine if the disclosure of any information is prohibited by law, when providing such information directly to the CP under subsection 20.9(3) of the COHSR, or indirectly to the WPHSC or the Representative, via a copy of the CP’s report under paragraph 20.9(5)(b) of the COHSR.

In each of the above cases, if the employer believes the disclosure of information is prohibited by law, the employer should clearly identify which law is prohibiting the full disclosure to the intended recipient of the information.

7. Who are the “parties” in paragraph 20.9(1)(a) of the COHSR?

The term “parties” includes the employer, the complainant, and the alleged aggressor, but only if this person is also an employee.

Alleged aggressors who are not employees are not considered “parties” because the employer has no control over them. The employer cannot compel them to co-operate with the CP, or impose any disciplinary action on them. Since these non-employees have little or no stake in the outcome of the investigation, it would undermine the process to grant them a say in the selection of the CP.

In contrast, alleged aggressors who are employees have both an obligation to cooperate and a stake in the outcome of the investigation, and, therefore, are considered parties.

Note:

Hereafter the term “Respondent” will refer to the alleged aggressor, whether an employee or not, unless otherwise clarified.

8. Who are the “persons involved” in subsections 20.9(3) and paragraph 20.9(5)(b) of the COHSR who must consent to their identities being disclosed?

The above COHSR provisions require the employer to obtain consent from the “persons involved” before disclosing any identifying information to the CP, the WPHSC, or the Representative.

For this purpose, the “persons involved” are the complainant, respondent, and witnesses who have provided information to either the employer or the CP.

As discussed in section 7, a non-employee respondent is not a party to the complaint, but is still a person involved in the issue. As such they are entitled to protect their identity from being disclosed throughout the process.

It is unlikely that a non-employee respondent will cooperate with the employer or CP, since they cannot be compelled to do so and have little or no stake in the outcome. It is also unlikely they will consent to having their identity disclosed to the CP or various work place entities. Nevertheless, if the employer wants to disclose identifying information of a non-employee respondent to any entity, the employer must first obtain their consent.

To summarize, employers must obtain consent from the following persons involved:

  1. Complainant
    before disclosing identifying information to the:
    1. respondent
    2. CP
    3. PHSC, WPHSC, or Representative
  2. Respondent
    before disclosing identifying information to the:
    1. CP
    2. PHSC, WPHSC or Representative
  3. Witnesses
    before disclosing identifying information to the:
    1. complainant
    2. respondent
    3. CP
    4. PHSC, WPHSC, or Representative

For each person involved, the employer may obtain consent for all disclosures at the same time, as long as this is made clear to the person involved, or may obtain each consent separately so that the person involved can pick and choose which consent to grant.

Before a person involved makes a decision with regard to consent, the employer should ensure the employee can make an informed decision. The person should receive all necessary information about the regulatory requirements (for example, the role of the CP), and be informed about the consequences of giving consent or not (for example, there is the chance the CP may discover their identity through other means).

The employer must be able to demonstrate the required consent was obtained from the persons involved. Therefore, it is recommended the employer obtain consent in writing; a template “consent form” is found at Appendix B.

If a person involved consents to their identity being disclosed to the CP, but not to one or more recipients of the CP’s report, (as discussed in section 11.4), the employer must redact this information from the report before forwarding it to the specific recipient(s).

9. What role do bargaining agents, trade unions, and lawyers have in Part XX of the COHSR?

Bargaining agents, trade unions and lawyers are not explicitly mentioned in Part XX of the COHSR. However, a complainant or respondent may still seek assistance from, or be represented by, their bargaining agent, union or lawyer.

In these cases the complainant and respondent (if an employee) must still co-operate and participate in the process and provide all relevant information through their chosen representative.

If an employee chooses to be so represented, this should be documented in the complaint.

10. What is an employer expected to do under subsection 20.9(2) to try and resolve complaints of WPV?

Subsection 20.9(2) requires the employer to make genuine attempts to resolve the complaint before appointing a “competent person” to investigate.

It is generally preferable for the complaint to be resolved at this level. To increase the likelihood of this outcome, employers may wish to consider the steps set out in Appendix A.

These steps require the employer to review the employee complaint, which may involve interviewing witnesses, reviewing employee files and consulting with the WPHSC or Representative.

The review should focus on determining how the employee’s concerns can best be resolved and what measures may be necessary to prevent a future occurrence.

11. CP Investigations

11.1 What must an employer do to select a “CP” under subsection 20.9(1) of the COHSR?

If the complaint is not resolved under subsection 20.9(2) of the COHSR, the employer must begin the process of appointing a CP to formally investigate.

The CP can be an employee of the work place or an outside contractor.

Section 20.1 of the COHSR requires employers to consult the PHSC, or if there is no PHSC, the WPHSC or Representative when carrying out all employer obligations in Part XX, including selecting the CP.

It is not mandatory that agreement be reached between the employer and the applicable PHSC, WPHSC or Representative on the selection of the CP, but such agreement would help validate the CP in the eyes of the complainant and employee respondent.

The employer must be able to demonstrate that these consultations took place and the applicable PHSC, WPHSC or Representative had the opportunity to comment on the selection. The employer should also be able to justify their selection if agreement is not reached.

During these consultations, the employer must still protect the identities of the persons involved from the PHSC, WPHSC and Representative, unless these persons have provided consent to have their identity disclosed for this purpose.

To simplify this process, it is recommended that the employer, in consultation with the PHSC, WPHSC or Representative as applicable, establish a list of potential CPs ahead of time, that can be drawn from as needed. This would eliminate the need to obtain consent from the persons involved to disclose their identities during these consultations.

Impartiality of the CP

Paragraph 20.9(1)(a) of the COHSR, requires the “parties” (in othe words, the employer, the complainant, and the employee respondent) to agree that the CP is impartial.

Any objection by a party regarding the CP’s impartiality is sufficient to disqualify the CP. In these cases the employer cannot question the party’s objection, and instead must propose alternate CPs until one acceptable to all parties is found. Failure to do so would contravene 20.9(1)(a) and 20.9(3) of the COSHR.

Knowledge, training and experience of the CP

Paragraphs 20.9(1)(b) and (c) of the COHSR require the employer to ensure the CP has the necessary knowledge, training and experience to conduct the investigation.

Objections regarding the knowledge, training and experience of a CP may be refuted by information provided by the employer and/or CP. Therefore, a party may raise objections over these qualifications, and the employer must respond to them. However, the objecting party does not have final say in the matter, and any unresolved complaints on this issue may be referred to the Labour Program.

11.2 Can an employer refuse to appoint a CP?

There may be cases where an employer refuses to appoint a CP based on the belief that the incident described by
the employee does not constitute WPV, and, therefore, the provisions of Part XX of the COHSR, specifically subsection 20.9(3), do not apply.

Before reaching such a conclusion, employers should carefully consider section 3.4 of this IPG, specifically the conclusion that, unless it is plain and obvious that the incident does not constitute WPV, it must be assumed that it does, and Part XX of the COHSR must be followed. Employers must also be aware that case law has established they have very little discretion in this regard.

If, after considering the above, the employer still refuses to appoint a CP on this basis, the employee may initiate a complaint with the Labour Program stating that the employer violated subsection 20.9(3) of the COHSR by refusing to appoint a CP. (See section 17.1 of the IPG).

11.3 Should the CP know the identities of the persons involved before commencing the investigation?

According to subsection 20.9(3) of the COHSR, the employer cannot reveal the identity of the persons involved to the CP without their consent.

It is generally preferable for the CP to know the identities of the parties, since this simplifies some aspects of the investigation. But the CP must still investigate even if one or more of the persons involved does not want their identity disclosed.

In these cases the investigation may be conducted “anonymously” over the phone, or by email, or via a third party intermediary, (for example, a member of the WPHSC or Representative). Not knowing the identities of the persons involved should not prevent the CP from obtaining the necessary information to fully investigate the complaint.

11.4 Who must receive a copy of the CP’s report?

As per paragraph 20.9(5)(b) of the COHSR, the employer must provide a copy of the CP’s report to the WPHSC or Representative. There is no requirement to also provide a copy to the PHSC if one exists. However, the PHSC must be provided with at least a copy of any recommendations contained in the report, for the purpose of employer consultations described in section 11.5 of the IPG.

In addition, although not explicitly stated in Part XX of the COHSR, in the interests of natural justice and procedural fairness, each party to the complaint is also entitled to receive a copy of the report.

As discussed in section 7, the parties include only the employer, the complainant, and the employee respondent, (in other words non-employee respondents are not included). Therefore, the employer must provide a copy of the CP’s report to the WPHSC or Representative, the complainant, and the employee respondent.

If the report contains any identifying information of a person involved that the person did not consent to being disclosed to one or more of the recipients of the report, the employer must redact this information before sending the report to the recipient(s).

11.5 Is the employer required to implement all recommendations in the CP’s report?

It is not mandatory, under the COHSR, for the employer to implement every recommendation of the CP. However, the employer is required by paragraph 20.9(5)(c) of the COSHR to adapt or implement controls previously established under subsection 20.6(1) of the COHSR as much as reasonably practicable, to prevent a recurrence of the work place violence.

The determination of what is reasonably practicable will depend on the specific circumstances. Generally, for an action to be considered reasonably practicable, the required effort, time and cost must not significantly outweigh the benefits of the action. Refer to 920-1-IPG-055, Criteria for Reasonably Practicable, and Reasonably Possible for more information.

Regardless of the employer’s decision concerning implementing the recommendations, in accordance with subsection 20.1 of the COHSR, this decision must be made in consultation with the PHSC, or if there is no PHSC, the WPHSC or the Representative.

If an employer does not fully implement all of the recommendations, and the complainant believes this violates the Code, the complainant may initiate a complaint with the Labour Program, (see section 17.3 of the IPG).

12. What if the complainant’s employment is terminated before the complaint is resolved?

If an employee complains to their employer that they have been exposed to WPV, but then leaves (or is terminated from) their employment before the complaint is resolved, is the employer still required to investigate the complaint under subsection 20.9(2), and to appoint a CP under COHSR subsection 20.9(3) of the COHSR if it is still not resolved?

Yes, but only if:

  • the complainant first raised the issue with the employer while still employed;
  • the respondent is still in the work place; and,
  • the complainant wishes the matter to be pursued.

In addition, if the complainant was terminated and believes this was because of the WPV complaint, the complainant may be eligible to file a complaint under section 133 of the Code with the Canada Industrial Relations Board alleging a violation of section 147 of the Code.

13. When would subsection 20.9(6) of COHSR apply?

Subsection 20.9(6) of the COHSR addresses situations where employees may deal with violent situations more frequently due to the nature of their work. An example of this would be a situation of violence faced by peace officers. In these cases, if all the requirements of subsection 20.9(6) of the COHSR are met, then the provisions regarding the appointment of a CP to investigate do not apply. However, in these situations the employer must still have a process to identify all factors that contribute to work place violence, based on the incident that occurred (section 20.4 of the COHSR), assess those factors (section 20.5 of the COHSR), and develop and implement control measures (section 20.6 of the COHSR).

Section 4 of the Labour Program publication, “Danger as a Normal Condition of Employment 905-1-IPG-070” may be helpful in determining what is a normal condition of employment.

14. What is meant by “effective” in paragraph 20.9(6)(c) of the COHSR?

In this case, “effective” means that the process to arrive at these procedures and that controls included meaningful consultation with the PHSC, WPHSC or Representative, as applicable. The employer must have procedures and controls in place to minimize the hazards posed by violence in the work place.

In addition, subsection 20.7(1) of the COHSR requires the employer to review the “effectiveness” of the work place violence prevention measures set out in sections 20.3 and 20.6 of the COHSR, and update them when there is a change that compromises the effectiveness of those measures, or at least every three years. This is also to be done with the consultation and participation of the PHSC, or if there is no PHSC, the WPHSC or Representative.

15. Relationship between Part XV and Part XX of the COSHR

15.1 Does a WPV incident have to be reported to the Labour Program under Part XV of the COHSR?

Incidents of WPV that include any of the circumstances listed in section 15.5 or subsection 15.8(1) of the COHSR, must be investigated and reported to the Labour Program under Part XV, in addition to being addressed under Part XX.

For example, if an incident of WPV also results in a “disabling injury” to an employee as defined in section 15.1 of the COHSR, or requires the, “...implementation of rescue, revival or other similar emergency procedures...” as per paragraph 15.8(1)(c) of the COHSR, then the employer must also investigate and report the incident to the Labour Program under Part XV of the COHSR.

Similarly, if an incident of WPV results in the death of an employee, the “disabling injury” of two or more employees, or a permanent injury to an employee, the employer would be required by section 15.5 of the COHSR to report this incident to the Labour Program by telephone as soon as possible, in addition to reviewing it under Part XX.

15.2 Does the definition of “disabling injury” in section 15.1 of the COHSR include psychological injury resulting from WPV?

Yes. The definition of disabling injury in section 15.1 of the COHSR includes injuries that,

“…prevent an employee from reporting to work or from effectively performing all duties connected with the employee’s regular work…”

An employee may experience psychological injury from exposure to WPV that prevents them from reporting to work or effectively performing all of their regular duties.

Therefore, if an employee reports to their employer that they have been exposed to WPV, and as a result of this exposure they have missed work, or have had their duties modified, the employer must investigate and report this incident to the Labour Program under Part XV of the COHSR, in addition to addressing it under Part XX.

15.3 Is a police response to WPV incident considered “other similar emergency procedures” under paragraph 15.8(1)(c) of the COHSR?

Yes. For example, the police responding to a WPV incident involving a bank robbery would be reportable and would require an investigation under Part XV and Part XX of the COHSR. Police intervention in such cases would qualify as a rescue or other similar emergency procedures under paragraph 15.8(1)(c) of the COHSR and, therefore, requires the employer to investigate and report the incident to the Labour Program as required by Part XV.

16. Does Part XX of the COHSR also apply to supervisors and managers who are victims of WPV?

Yes, managers and supervisors who represent employers are still themselves considered to be “employees” and, therefore, fall within the scope of Part XX of the COHSR.

17. Referring Part XX Complaints to the Labour Program

Complaints that are related to the employer’s general WPV prevention policy, but that do not include any allegation of WPV actually occurring, would typically be required to follow all stages of the ICRP, as described in section 127.1 of the Code.

However, complaints that include allegations of WPV may be referred to the Labour Program if they are unresolved after the first stage of the ICRP (in othe words after the employer has been notified). The assignedFootnote 2 Official Delegated by the Minister (ODM)  would then investigate the complaint, as permitted by paragraph 141.(1)(a) of the Code, to determine if the employer is complying with Part XX of the COHSR.

17.1 Complaint that an employer refuses to appoint a CP

Complaints may be received that an employer refuses to appoint a CP to investigate an unresolved WPV complaint, as required by subsection 20.9(3) of the COHSR, on the basis that the employer does not believe WPV occurred.

An ODM assigned such a complaint must determine if the employee was exposed to WPV, since this is the triggering requirement for 20.9(3) to apply.

To make this determination for incidents involved alleged psychological harm, the ODM must apply the same criteria described in section 3.4 of this IPG. Specifically, unless it is plain and obvious that the incident does not constitute WPV, it must be assumed that it does, and Part XX of the COHSR applies.

Therefore, if the ODM has any doubts about whether or not WPV occurred, the ODM must require the employer to appoint a “competent person” to investigate as required by 20.9(3) of the COHSR.

17.2 Complaint regarding the suitability of the CP

If either employee party believes the CP lacks the required impartiality, or knowledge, training and experience, the party must advise the employer, and if the matter is not resolved may initiate a complaint alleging a violation of paragraph 20.9(1)(a) or (b)  of Part XX of the COHSR.

17.3 Complaint that an employer refuses to implement all recommendations in the CP’s report

As mentioned in section 11.5 in the IPG, Part XX of the COHSR does not explicitly require an employer to implement every recommendation in the CP’s report. Therefore, complaints related to this issue must be decided based on whether or not the employer has developed and implemented effective controls to eliminate or minimize WPV, or the risk of WPV, to the extent reasonably practicable, as required by subsection 20.6(1) of the COHSR.

The ODM must review 920-1-IPG-055, Criteria for Reasonably Practicable, and Reasonably Possible. As part of the investigation, the ODM should determine if the employer consulted with the PHSC, WPHSC or Representative, as applicable, regarding the decision not to implement a recommendation.

18. WPV Prevention Program Evaluation

In addition to responding to the above types of complaints, ODMs may conduct pro-active inspections to determine the level of employer compliance with Part XX of the COHSR.

When evaluating the WPV prevention program as a whole, the ODM will consider the following:

  • a Work Place Violence Prevention Policy has been established and communicated to all employees;
  • the policy was developed in consultation and participation of the PHSC, WPHSC, or a Representative, as applicable;
  • the employer has identified and assessed factors which could contribute to WPV;
  • systematic controls and preventive measures are in place;
  • the date those measures were last evaluated and updated (must be done at least every three years as per subsection 20.7(1) of Part XX of the COHSR );
  • that procedures are in place to respond to WPV; and
  • employees have received WPV training.

For any contravention identified, the ODM will apply the Labour Program’s Compliance Policy.

Brenda Baxter
Director General/Directrice générale
Workplace Directorate/Direction du milieu de travail
Employment and Social Development Canada – Labour Program
Emploi et Développement social Canada – Programme du travail

Appendix A

Guidelines for COHSR 20.9(2)

These Guidelines describe the minimum recommended steps employers should follow to try and resolve work place violence (WPV) complaints before appointing a “competent person” to conduct a formal investigation.

ODMs who receive WPV complaints, which have not yet been referred to a “competent person”, should also refer to these Guidelines to determine if the employer has made legitimate attempts to resolve the complaint as required by COHSR subsection 20.9(2). If not, the ODM may direct the employer to do so. However, the ODM must also consider any other steps the employer has taken and determine if these are equivalent to the Guidelines.

Note:

These Guidelines are not intended to be an investigative tool to determine if the employee was exposed to WPV. Unlike other investigations required by the Code, the primary purpose of the employer’s review under subsection 20.9(2) of the COHSR is not to determine if the Code was violated, but rather to determine how the employee’s concerns can best be resolved. This is especially true for WPV complaints involving psychological harm, since it may be much easier to simply address the employee’s concerns than to conclusively determine if WPV occurred.

  1. Employer should fully understand the concerns of the complainant Footnote 3
    The complainant may raise a complaint with the employer in person or in writing. Either way, the employer should ensure the concerns are fully understood, and should seek clarification from the complainant if necessary.
  2. Employer must not disclose information to respondent Footnote 4 without complainant’s consent
    The employer must not disclose any identifying information about the complainant to the respondent without the complainant’s consent. This will encourage employees to raise concerns without fear of reprisal from the respondent, especially if the respondent is another employee.
  3. Employer must still try to resolve complaint, even if complainant does not want any identifying information disclosed to respondent
    The employer must still try to resolve the complaint, even if the complainant does not consent to the employer disclosing any identifying information to the respondent. The employer may still be able to make discreet inquiries with witnesses or other employees who know both parties to gain some insight, and could review the definition of WPV with the respondent.
  4. Employer should consider and respond to suggestions from the complainant
    If the complainant makes suggestions to the employer on how the complaint can be resolved, the employer should consider them, and provide the complainant reasons for those not accepted. Likewise, the employer should also consider any suggestions from respondent. The employer should focus on how the complainant’s concerns can be resolved, rather than whether or not WPV occurred.
  5. Employer should confirm if complaint has been resolved
    The employer should confirm with the complainant if the complaint has been resolved.

Appendix B

Consent form to disclose identity

Related to an unresolved complaint of Work Place Violence (WPV)
Canada Occupational Health and Safety Regulations (COHSR) – Part XX
Canada Labour Code – Part II

In my capacity below as a person involved in an unresolved complaint under Part XX of the COHSR (select one),

Complainant

Respondent (Employee or non-employee alleged aggressor)

Witness

with the understanding that:

  • it is my choice under subsection 20.9(3) and paragraph 20.9(5)(b) of the COHSR, to consent to my identity being disclosed in relation to the above complaint;
  • I am not obligated to give consent; and,
  • withholding my consent does not
    • relieve the employer from any of their obligations under Part XX of the COSHR,
    • relieve me of any obligations I may have as an employee under paragraph 126.(1)(e) of Part II of the Canada Labour Code to cooperate with any person carrying out a duty imposed by the Code, and,
    • guarantee that my identity may not become known to other individuals involved in unresolved complaint.

I hereby consent to have my identity disclosed to the following, for the purpose of investigating and resolving the complaint (select all that apply):

Complainant

Yes

No

Respondent (Employee or non-employee alleged aggressor)

Yes

No

Witnesses

Yes

No

Competent person

Yes

No

Policy Health and Safety Committee

Yes

No

Workplace Health and Safety Committee or Health and Safety representative

Yes

No

Signature

Date

Name

Appendix C

Competent person report template

Related to an unresolved complaint of Work Place Violence (WPV)
Pursuant to subsection 20.9(4) of the COHSR,
Canada Labour Code – Part II

1. Employer and workplace address:

Employer legal name

Site address

2. Employer contact:

Name

Title

3. Complainant:

Complainant provided consent to employer to disclose identity to competent person:

Yes

Name of complainant

No

4. Respondent (alleged aggressor):

Respondent is employed by the employer:

Yes

Name of alleged aggressor

No

Respondent provided consent to employer to disclose identity to competent person:

Yes

Name of respondent

No

5. Witness(es):

Witness is employed by the employer:

Yes

Name of witness(es)

No

Witness provided consent to employer to disclose identity to competent person:

Yes

No

6. Competent person appointed by the employer to investigate:

Name:

Title:

Date competent person appointed to investigate:

Date:

Competent person is employed by the employer:

Yes

No

Complainant accepts selected competent person:

Yes

No

Employee respondent accepts selected competent person:

Yes

No

7. Information obtained by the competent person:

From the employer: Information

From the complainant: Information

From the respondent: Information

From witnesses: Information

8. Conclusion of the competent person

Complainant was exposed to WPV

Yes

No

Rationale for the conclusion:

(If WPV was found to occur, the conclusion should explain how the existing WPV prevention program failed.)

9. Recommendation(s) of the competent person

(in order of priority, to improve the WPV prevention program and prevent a recurrence of WPV)

(Recommendations should focus on controls measures to be adapted or implemented by the employer to prevent similar WPV situations from recurring in the workplace.)

(Recommendations should not include disciplinary action for the respondent or of any personal remedy to the complainant).

Signature

Date

Appendix D

Employer complaint handling process

Related to a complaint of work place violence
Pursuant to Part XX of the Canada Occupational Health and Safety Regulations
Canada Labour Code – Part II

Employer becomes aware of WPV

1. Employer becomes aware of Complaint of Work Place Violence (WPV) or alleged WPV through either a verbal or written complaint from the complainant or through other employees who are not themselves complainants, for example, witnesses.

Employer must try to resolve the WPV complaint

2. The employer must attempt to resolve the complaint, as soon as possible after becoming aware of it, as per section 20.9(2) of the Canada Occupational Health and Safety Regulations (COHSR). The employer should review Appendix B – Consent Form to Disclose Identity, individually with the complainant, respondent, and witnesses and have each of them complete a copy, to determine to whom each of them consent to have their identity disclosed during the following enquiries.

3. The employer should follow the steps set out in Appendix A – Guidelines for COHSR 20.9(2), while still respecting the individual consent responses received in Appendix B. During this stage in the process, the employer must gather as much information as possible from the complainant, respondent and witnesses to gain a clear understanding of the complaint. The employer must make every effort to address the concerns and resolve the issues to the satisfaction of both the complainant and respondent. The resolution must address the root causes and factors that may have contributed to the circumstance and must result in actions taken to prevent recurrence of a similar circumstance.

4. If either the complainant or respondent (if an employee) is not satisfied with the actions taken by the employer to resolve the complaint, the matter will be considered to be unresolved and must be referred to a competent person (CP) for a formal investigation.

Employer must appoint a competent person to investigate unresolved complaints of WPV

5. The employer must consult with one of, the Policy Health and Safety Committee (PHSC), the Work Place Health and Safety Committee (WPHSC) or the Health and Safety Representative (Representative), as required by section 20.1 of the COHSR, in the selection of the CP. During these consultations the employer must still respect the consent responses received in Appendix B. If the employer and applicable committee or representative cannot agree on the selection of the CP, the employer may make the selection, but should provide justification to the committee or representative.

6. The employer must also ensure the selected CP meets the requirements of subsection 20.9(1) of the COHSR. If the complainant or respondent (if an employee) does not agree with the employer’s selection, they may file a complaint with the Labour Program.

Competent person shall investigate and write a report

7. The CP will seek and obtain from the employer all relevant information whose disclosure is not prohibited by law and would not reveal the identity of persons involved without their consent.

8. The CP will conduct a formal investigation of the complaint by interviewing the persons involved to gather the facts that resulted in the complaint. If any of the persons involved do not consent to having their identity disclosed to the CP, the CP must still proceed with the investigation. In these cases the persons involved may be interviewed “anonymously” over the phone, or information may be transmitted by email, or via a third party intermediary such as member of the WPHSC.

9. At the conclusion of the investigation, the CP will decide if the complaint falls within the scope of the definition of WPV, and, if so, will develop recommendations on how future recurrences of WPV can be prevented. The CP will provide the employer a written report with the conclusion and any recommendations that were developed. (See Appendix C – Competent Person Report Template)

Employer’s duty regarding competent person’s report

10. The employer must provide a copy of the CP report to the complainant, respondent (if an employee), and the WPHSC or representative. Before sending the report, the employer shall redact any identifying information necessary to respect the consent responses received in Appendix B.

11. The employer must consult with the PHSC, WPHSC or HSR, as required by section 20.1 of the COHSR, regarding the implementation of recommendations contained in the CP report to prevent a recurrence of WPV, to the extent reasonably practicable, as per subsection 20.6(1) and paragraph 20.9(5)(c) of the COHSR. These recommendations should be implemented as soon as practicable, but not later than 90 days from the date the employer received the CP report, as per subsection 20.6(2) of the COHSR.

Employer shall keep a copy of the CP report in such a manner that it is readily available for examination by an ODM as per section 1.5 and paragraph 20.9(5)(a) of the COHSR.

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