Module 7: Internal Complaint Resolution Process

In this module, you will learn about a formal process that you can use to resolve workplace hazards or contraventions of the federal occupational health and safety (OHS) legislation and their regulations. The internal complaint resolution process allows employees, their supervisor and other workplace parties, who are more knowledgeable and have a greater vested interest regarding hazards that may exist in their workplace, to resolve OHS issues while maintaining safety at work. Let’s not wait for a physical or psychological injury or illness in the workplace to occur! Let’s respond to complaints proactively.

By the Canada School of Public Service

Topics include:

• Three steps in the internal complaint resolution process
• Step 1
• Step 2
• Step 3
• Internal complaint resolution process flowchart
• Quiz: 5 questions
• Going further than that…

Module 7: Internal Complaint Resolution Process

Section 127.1 of the Canada Labour Code, Part II, (the Code, Part II) establishes a formal process that allows for a graduated series of interventions to resolve workplace health and safety issues in a more timely and efficient manner. It provides your supervisor or manager with the opportunity to address and correct employee concerns without the need to involve the Labour Program of Employment and Social Development Canada.

You must notify your supervisor of any situation that you think constitutes a contravention of the Code or that can likely cause a physical or psychological injury or illness in the workplace. After being made aware of the formal internal complaint, your supervisor will work with you to try to resolve the problem as quickly as possible.

Please note that workplace hazards or contraventions can be identified and resolved without making a formal internal complaint; however, if the hazard or contravention that you reported is ignored or is not being resolved to your satisfaction, you have the right to make a formal complaint.

If you wish to exercise your right to refuse dangerous work, and you stop working because you have reasonable cause to believe that the place, the activity or the operation of a machine presents a danger, you should use the refusal-to-work process described in section 128 of the Code, Part II.

Three steps in the internal complaint resolution process

Step 1

You report a hazard or contravention of the Code, Part II, to your supervisor. You and your supervisor try to resolve the complaint between yourselves as soon as possible.

If the complaint is resolved to the satisfaction of both you and your supervisor, then the complaint is considered resolved. You and your supervisor shall complete Part I of the Internal Complaint Resolution form found on the [insert your department’s[1] name] website.

If the complaint is not resolved, the process goes to Step 2.

Step 2

Step 2 in the internal complaint resolution process is to refer the complaint to the workplace occupational health and safety (OHS) committee co-chairs. In workplaces where there are fewer than 20 employees, the unresolved complaint must be referred to the health and safety representative. The co-chairs of the workplace OHS committee will appoint an employee and an employer member to conduct an investigation. In workplaces where there are fewer than 20 employees, the investigation will be conducted by the health and safety representative and a person designated by the employer. The investigators shall inform you and your supervisor in writing of the results of the investigation, and they may make recommendations to your supervisor by completing Part II of the Internal Complaint Resolution form, regardless of whether they conclude that the complaint is justified.

If the investigators conclude that the complaint is justified, your supervisor may agree and immediately inform them in writing of how and when the matter will be resolved.

If your supervisor does not agree with the findings or recommendations of the investigation, or if your supervisor has failed to inform the investigators of how and when the matter will be resolved, or if the investigators do not agree among themselves as to whether the complaint is justified, the process goes to Step 3.

Step 3

The complaint and the investigation report are forwarded to the local office of the Labour Program (ESDC) or Transport Canada. While the internal complaint resolution process allows the employee to refer the complaint directly to the Labour Program, it is highly recommended that the correspondence be sent to the Labour Program by your department’s OHS specialist. Doing so will:

• Coordinate exchanges between the Labour Program, you and your supervisor; and
• Keep a file on the matter.

An official representative of the Minister of Labour or Transport Canada will investigate the complaint, and will determine one of the following:

• The Minister’s representative may determine that you and your supervisor try to resolve the matter once more between yourselves;
• The Minister’s representative may determine that the complaint is not justified, and that the complaint shall be closed as a result. There is no other recourse for you in this situation;
• The Minister’s representative may request an Assurance of Voluntary Compliance (AVC)[2] from your employer or you if it is determined that your employer or you are in non-compliance with any provision of the Code, Part II, or the Canada Occupational Health and Safety Regulations; or
• The Minister’s representative may issue a direction to your employer or you. A direction is a legal written notice addressed in general to a senior executive in your department, ordering your employer to address a contravention of the Code, Part II, within a specified period. A direction can be addressed directly to you and may order you to address the contravention of the Code, Part II.

Either your employer or you may appeal a direction issued by the Minister’s representative within 30 days of the direction being issued.

Note

In their Compliance Policy, the Labour Program of Employment and Social Development Canada mentions the following:

Enforcement

Part II of the Canada Labour Code is enforced by a series of escalating actions that depend on the seriousness of the violation and the co-operation of the workplace.

Assurance of Voluntary Compliance

The Assurance of Voluntary Compliance (AVC) is typically the first level of enforcement. This is the employer’s or employee’s written commitment to a Labour Program health and safety officer to correct the contraventions described in the AVC, and to provide a written confirmation of compliance to the health and safety officer by a specific date. However, the AVC is never to be used to correct a situation of danger.

Direction

A direction is a formal written order directing the employer or employee to terminate and correct a contravention of the Code within a specified period. A Labour Program health and safety officer must issue a direction if, during an investigation or inspection, the officer determines that a danger exists, or if corrective actions specified in a previous AVC have not been completed.

Employers, employees or trade unions may request an appeal of a direction. However, the request does not act as a stay of the direction; this means compliance with the direction must continue until an appeals officer rescinds the direction.

Since July 29, 2019, appeals that were previously filed with the Occupational Health and Safety Tribunal Canada must now be filed with the Canada Industrial Relations Board. The Board reviews the appeal and may uphold, rescind or amend the direction.

Internal complaint resolution process flowchart

Reference: Information on Occupational Health and Safety – Pamphlet 3 Hazardous internal complaint resolution process, Labour Program, 2015

Internal complaint resolution process flowchart text version

• Employee believes there is contravention or that accident or injury is likely.
• Employee must make complaint to supervisor – 127.1(1)
• Supervisor and employee must try to resolve complaint – 127.1(2)
• If complaint unresolved – may be referred to chairperson of work place committee or health and safety representative for further joint investigation – 127.1(3)
• Employee and employer members of work place committee – 127.1(3)(a)
• Health and safety representative and person designated by employer – 127.1(3)(b)
• Persons who investigated complaint shall inform employee and employer in writing of results – 127.1(4)
• Whether or not complaint is justified – persons who investigated complaint may make recommendations to employer – 127.1(5)
• Employer shall, in writing, inform persons who investigated complaint how and when matter will be resolved – 127.1(6)
• If investigating persons conclude that danger exists – employer can’t assign another employee to task – 127.1(7)
• Employee or employer may refer complaint of contravention to health and safety officer if…
  • Employer disagrees with results of investigation – 127.1(8)(a)
  • Employer failed to inform investigating persons how and when matter will be resolved – 127.1(8)(b)
  • Investigating persons do not agree whether or not complaint is justified – 127(8)(c)
• Health and safety officer will investigate – 127.1(9)
• After investigating complaint, health and safety officer…
  • May issue directions under subsection 145(1) to employer or employee
    paragraph 127.1(10)(a)
  • May recommend employee and employer resolve matter between themselves
    paragraph 127.1(10)(b)
  • Shall issue directions under subsection 145(2) if officer concludes that danger exists.

Quiz – Module 7: Internal Complaint Resolution Process

1. What is the first step in an internal complaint resolution process?
   1. Employee informs their supervisor of a contravention of the Code
   2. Employee and supervisor inform the OHS committee or representative of a contravention of the Code
   3. When the OHS committee co-chairs or OHS representative investigate the hazard
   4. Employee contacts the local office of the Labour Program to file an internal complaint
2. What is the second step in an internal complaint resolution process?
   1. The complaint is brought to the OHS committee co-chairs or OHS representative
   2. The Minister of Labour or Transport Canada investigates the alleged hazard or contravention of the Code, Part II
   3. Your department’s OHS specialist investigates the formal internal complaint
3. What is the third step in an internal complaint resolution process?
   1. The OHS committee brings the investigation results to the supervisor
   2. The supervisor brings the complaint to the attention of senior management
   3. The supervisor or the employee brings the complaint to the representative of the Minister of Labour or Transport Canada as a result of the supervisor not agreeing with the findings, or the employer not addressing the contravention or hazard
4. Under what circumstances can the Labour Program health and safety officer recommend that the employee and the employer reconvene to resolve the matter of the complaint between themselves?
   1. The investigators of your workplace OHS committee do not agree between themselves as to whether the complaint is justified
   2. The steps of the internal complaint resolution process under section 127.1 of the Code, Part II, have not been followed, and the parties are informed by the Labour Program to follow those steps
5. What is the difference between a formal internal complaint and a refusal-to-work under section 128 of the Code, Part II?
   1. No difference. Both are used to formally resolve a contravention of the Code, Part II.
   2. The difference is that the employee does not refuse to work and uses the internal complaint resolution process to formally resolve a contravention of the Code, Part II.

Module 7: Going further than that…

You are invited to enhance your skills and knowledge by consulting the following.

Links to reference material

• Information on Occupational Health and Safety – Pamphlet 3 Hazardous internal complaint resolution process
• Compliance Policy
• Canada Industrial Relations Board
• Fisheries and Oceans Canada, Internal Complaint Resolution Report form

 

[1] In this training package, “department” is generally used to refer to federal departments and agencies.  

[2] An AVC is the employer's or employee's written commitment to a health and safety officer that a contravention of the Canada Labour Code will be corrected within a specified period. It is delivered to a senior executive in your department to address the non-compliance within a specified period. An AVC can be addressed directly to you and may ask you to address your contravention of the Code, Part II.