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

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.

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.

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).

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.

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.

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.

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.

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

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

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.