Federal court allows PSAC judicial review application on workplace harassment

The Federal Court has allowed the PSAC’s judicial review application in a case involving workplace harassment.

Abel Akon, a PSAC member and employee of the Canadian Food Inspection Agency (CFIA), alleged that his employer engaged in favoritism and that he was harassed, humiliated, belittled and treated with disrespect by his supervisor.  Subsequently, Akon filed a complaint under Regulation 20 of the Canada Labour Code.

Regulation 20 or the Violence Prevention in the Workplace, provides for an investigation by a competent person who is seen by both parties as impartial.  CFIA appointed a member of management to investigate and then dismissed the complaint.

CFIA argued, and the Appeals Officer with the Occupational Health and Safety Tribunal Canada agreed, that employers can pre-screen complaints to determine whether Regulation 20 applies. If it does not, an employer is not obliged to follow the requirement to appoint an impartial investigator.

This, despite a Treasury Board publication that confirms Part 20 can be used by an employee to allege harassment constitutes violence. In court, the Attorney-General of Canada argued that workplace violence covers only physical force that can cause harm, injury or illness.

The judge in this case disagreed. "In my opinion" he wrote, "psychological bullying can be one of the worst forms of harm that can be inflicted on a person over time."  He confirmed that harassment can constitute workplace violence.  In circumstances where a complaint is related to workplace violence, he ruled, an employer cannot avoid the appointment of an impartial investigator.  Without a proper investigation of a competent person, the decision of the Appeals Officer was unreasonable.

The appeals officer has been directed to reconsider the matter, consistent with the court’s directive.

A copy of the decision is attached below.