Work Place Violence Investigations and Appointing a Competent Person – 2017-3

Service Wide Committee on Occupational Health and Safety

The Service Wide Committee on Occupational Health and Safety has recognized that there continues to be lack of clarity surrounding Work Place Violence Investigations within Departments and the appointment of a competent person to carry out such investigations. Given the mandate of the SWOHS Committee, the following Communiqué has been developed to assist in better guiding Departments/Agencies and Policy Committees with respect to carrying out Work Place Violence Investigations.

Participation of the Policy Health and Safety Committee (PHSC), or if there is no Policy Health and Safety Committee, the Work Place Health and Safety Committee (WPHSC) or Representative

Section 20.1 of the Canadian Occupational Health and Safety Regulations (COHSR)  requires that the employer must carry out its obligations under Part XX in consultation with and the participation of the policy committee or, if there is no policy committee, the work place committee or the health and safety representative. This requirement includes consultation on the selection of a competent person.

Policy Committees are to consulted and participate in every step of violence prevention in the work place, beginning with the development of the prevention policy and including, but not limited to the investigation and training.

It is not mandatory that agreement be reached between the employer and the applicable PHSC, WPHSC or Representative on the selection of the competent person, but such agreement may help validate the perception of impartiality of the proposed competent person in the eyes of the parties to the complaint.

Should there be any disagreement between the parties, 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 will need to be able to justify their selection if an agreement is not reached.

Criteria for a Competent Person

Part 20.9 (1) of the Canada Occupational Health and Safety Regulations sets out the three (3) criteria that are essential to being appointed as a competent person for the purposes of Work Place Violence Investigations. To better guide the appointment of a competent person, the SWOHS Committee has elaborated on each of the criteria. 

With respect to Work Place Violence Investigations, a competent person means a person who:

1. is impartial and is seen by the parties to be impartial;
   
   All parties to the complaint must agree to the impartiality of the competent person. It is to be noted that a “party” does not include witnesses. That being said, no party has the right to deliberately frustrate the process of identifying a competent person so as to impede the conduct of an investigation. There may be legitimate reasons to object to the proposed competent person, which may or may not include, based on the circumstances of the case, the fact that the competent person proposed is from within the same organization. However, should an issue of impartiality arise, it is recommended that an open dialogue take place to discuss both what the parties may be looking for in an impartial competent person and why the individual proposed does or does not meet the criteria. The reasons for objecting to the selection of a competent person need to be well documented.
   
   Available options with respect to avoiding issues of impartiality could include the use of the “competent team” approach with a representative from the Employer and a representative from the Employee identified to conduct the investigation jointly. This does not remove the ability of any of the parties involved to question the impartiality of the “competent team”. This “competent team” would need to be able to demonstrate their knowledge, training and experience in dealing with the particular nature of the complaint.
   
   
2. has knowledge, training and experience in issues relating to work place violence; and
   
   Such “knowledge, training and experience in issues relating to work place violence” should include experience in Occupational Health and Safety investigations under Part XX – Violence Prevention in the Work Place. Other training and experience that could be considered a valuable asset may include experience involving Part XV – Hazardous Occurrence Investigation, Recording and Reporting, or other similar experience involving OHS investigations.
   
   Experience performing work place assessments/OHS investigations which include root cause analysis and the ability to write a clear and concise report should also be taken into consideration when identifying a competent person.
   
   
3. has knowledge of relevant legislation.
   
   “Relevant legislation” should include, but not be limited to, knowledge of the: Canada Occupational Health and Safety Regulations, the Canada Labour Code – Part II – Occupational Health and Safety, and Policy Committees, Work Place Committees and Health and Safety Representatives Regulations.  Specific knowledge of “Preventive Measures” should be considered as essential as one cannot make sound recommendations to prevent a reoccurrence of the work place violence should they not be familiar with the necessary factors, assessment and prevention measures as outlined in the COHS Regulations.

Essential Elements of a Competent Person Investigative Report

The components of a fulsome, but concise investigative report should ideally include:

• a summary of the investigative findings;
• an analysis of the root cause for the incident including enough evidence to support the identified root cause; and
• recommendations for preventative measures.

A timeline approach with respect to the history and background of the incident can often assist in developing an objective analysis. If the competent person determines that workplace violence did not occur, they should still identify any factors during the course of their investigation or in the report that could lead to workplace violence and provide recommendations to the employer of preventive control measures.

Should a competent person elect not to speak to a witness identified by a party to the complaint, the investigative report should provide a justification as to why certain witnesses were not interviewed. As such, it is recommended that the competent person clarify with the party what each witness can bring to the investigation.

Please refer to Appendix 1 for an example “Competent Person Investigative Report” template.

Enquiries

Requests for more information or clarification should come from Policy Committee Co-Chairpersons and should be addressed to the Service Wide Committee on Occupational Health and Safety. The SWOHS Committee can be reached via email at: email.courrier@njc-cnm.gc.ca

Appendix 1

Competent Person Investigative Report Template

Investigation Scope

The investigation was conducted to identify if work place violence occurred.  When incidents are investigated, the emphasis should be concentrated on finding the root cause of the incident. The purpose of a competent person’s investigation is to examine the allegations or to review the incident brought forward to determine if the situation(s) meet the definition of “workplace violence”. Whether violence is found or not, the key role of the competent person is to make recommendations to implement systemic controls to eliminate or minimize workplace violence or the risk (identify and address factors that could lead to workplace violence) of workplace violence to the extent reasonably practicable. The recommended preventative controls or measures are intended to prevent a recurrence of workplace violence if it is founded, or to guard against future situations of workplace violence, if the competent person has identified factors that could lead to workplace violence.

It is not a personal remedy, nor is the investigation intended to find fault or lay blame.

The purpose is to find facts that can lead to actions, not to find fault. Therefore, investigating incidents of workplace violence under Part XX is to determine weaknesses within the OHS Management System and to formulate effective recommendations for prevention and reoccurrence of workplace violence.

The report is to be released to the Work Place Committee / Representative. The report should provide the committee/representative with the necessary information to allow the OHS Committee / Representative to make recommendations to the employer on the implementation and adoption of the Competent Person’s recommendations. It is not necessary to know the identities of individuals or finite details of the actual events for them to fulfil their role.