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Attorney General of Canada v. PSAC, 2015 FCA 273

On November 30, 2015, the Federal Court of Appeal issued a decision in Attorney General of Canada v. PSAC, 2015 FCA 273.

In this case, a member of the Public Service Alliance of Canada (PSAC), Mr. Akon, met with his supervisor to discuss concerns relating to their working relationship. Following their meeting, Mr. Akon filed a harassment complaint against his supervisor and the Canadian Food Inspection Agency (CFIA) and raised concerns relating to favouritism and unfair treatment relating to leave requests. Mr. Akon also raised concerns with humiliating and disrespectful treatment in the workplace (dismissive hand gestures, eye rolling, verbally demeaning behaviour, disregarding complaints of colleagues yelling at him in front of plant personnel, lack of transparency and unfair marking of a certification exam). The complaint did not refer to workplace violence or to the Canada Labour Code (CLC) Regulations.

When the CFIA cancelled a meeting scheduled to discuss possible resolution of the complaint, the employee notified the CFIA that his concerns had not been addressed and, in the circumstances, that he planned to file an official complaint under Part XX of the CLC Regulations.

The Area Occupational Health and Safety Co-Chairs at the CFIA appointed a Regional Director to undertake a fact-finding process and review the concerns raised to determine whether an investigation was warranted. The fact-finding report included a conclusion that the allegations in the complaint did not constitute harassment and did not warrant an investigation but recommended an independent third party facilitator to find a resolution to the issues in the interpersonal dealings between Mr. Akon and his supervisor.

Mr. Akon presented the fact-finding report to a health and safety officer who issued a direction pursuant to para 145(1)(a) of the CLC indicating that the CFIA had failed to appoint a competent person as required by subsection 20.9(3) of the Regulations and indicated that the employer was not entitled to decide what does and does not constitute workplace violence, in order to screen out complaints.

The CFIA filed an appeal of the direction to the Appeals Officer under subsection 146(1) of the CLC and the Appeals Officer allowed the appeal and set aside the direction. In its decision it stated that the ER is only obliged to appoint a competent person once they have been made aware of workplace violence or an allegation of workplace violence and have tried to resolve it unsuccessfully.

The Federal Court overturned the Appeals Officer decision and agreed with the health and safety officer’s directive. The Federal Court of Appeal dismissed the appeal.

The Federal Court and the Federal Court of Appeal confirmed that pre-screening of a complaint must be limited to fact-finding for the purposes of resolving the dispute with the employee. If the attempts at informal resolution were unsuccessful and it was not plain and obvious that the complaint was not related to workplace violence, there is a mandatory duty to appoint a competent person that was seen by both parties as being impartial.

Publish Date: 02-FEB-2016 03:59 PM