Confidential Complaint Investigations - IPG-073

Effective Date: November 2008

1. Subject

This policy sets out procedures for handling confidential complaints received under Part III of the Canada Labour Code .

The Canada Labour Code, section 260, provides that where a person who makes a complaint to the Minister requests that their name and identity be withheld, their name and identity shall not be disclosed by the Minister or their officials except where disclosure is necessary for the purposes of a prosecution or is considered by the Minister to be in the public interest. Inspectors will use the following procedures in investigating confidential complaints filed under Part III of the Canada Labour Code.

2. Issue

There is a need for national consistent and transparent procedures for the conduct of confidential complaint investigations.

It must be emphasized that complaints of Unjust Dismissal cannot be handled on a confidential basis.

3. Procedures

Upon receipt of a confidential complaint, the inspector will discuss the ramifications related to the process of handling the complaint as such with the complainant.

The complainant should be advised that:

  1. the investigation of their complaint may take more time than a non-confidential complaint because, to protect their name and identity, the investigation will include an examination of records for all, or a broad sample of, employees of the employer.
  2. the enforcement of any findings of the investigation may need to proceed to the wage recovery process. Should this occur, the names of any employees affected by the complaint investigation, including the name of the complainant, will be made known to the employer. However, the employer will still not be informed as to who made the complaint.
  3. the employer may appeal an order made by the inspector before a referee at a wage recovery hearing. It is in the best interest of any employee who is affected by an inspector's order that has been appealed to attend the appeal hearing.

Where the complainant continues to request that their identity remain confidential, the complainant should be asked to produce any records or evidence that they may have to support their claim to assist the inspector to assess the basis of the claim. Records provided by a confidential complainant may not be disclosed to an employer without the consent of the complainant. As these records may not be disclosed to the employer, they may not be used as the basis for a determination of amounts owed. Natural justice requires disclosure of records used for a determination. Nevertheless, records from a confidential complainant may assist the inspector in identifying issues to investigate with the employer.

4. Contacting the Employer

After the inspector has reviewed the details of a confidential complaint with the complainant, the inspector will notify the employer that the Labour Program is in receipt of a confidential complaint. Template letter (Appendix A) will be used for this purpose. This letter will inform the employer that a complaint has been filed, and that pursuant to section 260 of the Canada Labour Code, Part III , the complainant has the right for their name and identity to be withheld.

Once the employer has been notified of the confidential complaint, the inspector should schedule an appointment with the employer. This will ensure that the inspector will be able to meet with the appropriate company official that is knowledgeable of operational procedures, and the company payroll system. Scheduling an appointment in advance will also confirm that the appropriate payroll records are available at this particular worksite and will be available for investigation. Confirmation of these arrangements shall be made in writing using template letter (Appendix B).

Where a scheduled appointment to visit the employer in person is not practical, the inspector may conduct the investigation by telephone. The inspector may obtain the records by mail, fax, etc. If the employer refuses to provide the records requested, the inspector must refer to OPD 700-4 - Response to Non-Compliance - Part III .

5. Records and Calculations

The inspector will select records for employees in a similar classification as the complainant. Records must be selected for a minimum of six employees. This is necessary to ensure the confidentiality of the complainant. Where a minimum sample of six employees in the same classification cannot be met, the inspector should include another employee classification(s) to the extent necessary.

The inspector will investigate the complaint in accordance with the process outlined in section 7.7 of the Complaints Handling OPD 700-10 ensuring that the anonymity of the complainant is maintained at all times.

Once having completed the investigation of the records, the inspector will determine compliance or non-compliance by comparing the amounts actually paid by the employer to the amounts calculated by the inspector to be owed according to the applicable Division of the Code.

Where the inspector finds a situation or situations of non-compliance with the Code related to the allegation or allegations of the complaint, the inspector must receive an Assurance of Voluntary Compliance (AVC) from the employer outlining the corrective actions to be taken by a specified date. The AVC should apply to all employees.

If the inspector finds a situation of non-compliance with the Code that is not related to the complaint, the inspector must also receive an AVC from the employer outlining the corrective actions to be taken by a specified date. The AVC should apply to all employees.

If the employer refuses to sign the AVC or fails to comply with the AVC, the inspector will investigate the complaint in accordance with the process outlined in section 7.7 of the Complaints Handling OPD 700-10 ensuring that the anonymity of the complainant is maintained at all times. If necessary, the inspector will also proceed to the Wage Recovery Procedure OPD 817-1.

In assessing underpayments, the Complaints Handling OPD 700-10 provides that the period of any retroactivity shall not normally exceed twelve (12) months from the date of non-compliance. Upon approval from the inspector's supervisor, the inspector has the authority to assess additional retroactivity. In assessing whether to increase the period of retroactivity, the inspector will review the scope of the infraction(s), the length of time that the identified underpayment(s) has(ve) been occurring, and the compliance history of the employer. In no case will the retroactivity exceed thirty-six (36) months from the date of the filing of the complaint unless clear documenting evidence is available to support the claim and approval has been obtained from regional management. Should the inspector conclude that retroactivity is not warranted, the inspector will so notify the complainant.

Under no circumstances should a Notice of Unfounded Complaint be issued to decline retroactivity.

Where the inspector determines there are no violations of the Code, the inspector will proceed in accordance with the Complaints Handling OPD 700-10 item 7.7 (u) to (y) and ensure that the anonymity of the complainant is maintained.

Fulvio Fracassi

Director General

Program Development and Guidance Directorate

HRSDC - Labour Program


Appendix A: Letter to Employer - Confidential Complaint

** Where input is necessary

**** Use one or the other possibility given in between the asterisks

**Date**

File No.: **Auto fill**

Assignment No.: **Auto fill**

**Name and address of employer**

Dear ****Mr./Mrs./Ms.**** **Name of the employer**:

Subject: Confidential Complaint - Canada Labour Code, Part III (Labour Standards)

The Labour Program is in receipt of a formal complaint filed against **employer's name**. The complainant has requested that their name remain confidential in this investigation. The Canada Labour Code, section 260, provides that where a person who makes a complaint to the Minister requests that their name and identity be withheld, their name and identity shall not be disclosed by the Minister or his officials. The Code applies to your company because the nature of the business brings it under federal jurisdiction pursuant to section 2 of the Canada Labour Code.

The complainant alleges that employees did not receive **describe basis of complaint, e.g., payment for overtime hours worked, pay in lieu of notice, severance pay, wages, etc.** to which they claim they were entitled under the provisions of the Canada Labour Code, Part III .

With reference to the ****allegation or allegations****, the Canada Labour Code, Part III , provides that:

**quote relevant section or sections **

Please contact the undersigned upon receipt of this letter for the purpose of scheduling a meeting to review the records related to the nature of this complaint.

You are reminded that subsection 249.(4) of Part III of the Canada Labour Code states:

"The person in charge of any federal work, undertaking or business and every person employed thereon or in connection with the operation thereof shall give an inspector all reasonable assistance to enable the inspector to carry out his duties and functions under this Part or the regulations."

Yours sincerely,

**Name of inspector**, Inspector

****Complete address if not shown on letterhead****

Telephone Number: **Telephone Number**

Fax Number: **Fax Number**

E-mail: **E-mail address**

National Toll Free: 1-800-641-4049

http://www.hrsdc.gc.ca/eng/index.shtml

Appendix B: Letter to Employer - Confirmation of appointment for investigation of records

** Where input is necessary

**** Use one or the other possibility given in between the asterisks

**Date**

File No.: **Auto fill**

Assignment No.: **Auto fill**

**Name and address of employer**

Dear ****Mr./Mrs./Ms.**** **Name of the employer**:

Subject: Confidential Complaint - Canada Labour Code, Part III (Labour Standards)

This letter is to confirm our meeting on **date** at **time** for the purpose of investigating a confidential complaint filed under the authority of the Canada Labour Code, Part III .

This investigation will include an initial interview with the most senior worksite representative of the employer. The purpose of this interview will be to review the company's policies, practices and records of your worksite to ensure compliance with respect to the Canada Labour Code, Part III .

The undersigned will conduct an inspection of your payroll records and all other relevant documents for the period from **date** to **date**.

Please ensure that all employee payroll records for the following areas are made available for the investigation:

**pop-up to provide for the following**

  • Hours of Work,
  • Minimum Wages,
  • Annual Vacations,
  • General Holidays,
  • Maternity-related Reassignment and Leave, Maternity Leave and Parental Leave,
  • Bereavement Leave,
  • Individual Terminations,
  • Severance Pay,
  • Garnishment,
  • Sick Leave,
  • Work-related Illness and Injury Leave,
  • Payment of Wages,
  • Sexual Harassment Policy.

We are enclosing a pamphlet which outlines the record keeping requirements of the Code.

If contraventions of the Canada Labour Code, Part III , are found during this inspection, you will be debriefed as to the findings and any corrective actions that will be required to achieve compliance.

Yours sincerely,

**Name of inspector**, Inspector

****Complete address if not shown on letterhead****

Telephone Number: **Telephone Number**

Fax Number: **Fax Number**

E-mail: **E-mail address**

National Toll Free: 1-800-641-4049

http://www.hrsdc.gc.ca/eng/index.shtml

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