A recent ruling by the Federal Court of Appeal in Ottawa may influence the scope of the legal definition of workplace violence and abuse in Canada. On Nov. 30, the Court threw out an appeal of a previous court decision that had overturned an Occupational Health and Safety Tribunal of Canada ruling that the Canadian Food Inspection Agency (CFIA) had been correct to dismiss an employee complaint.

The original complaint came from Abel Akon, a Sudanese immigrant who works as a poultry inspector for the CFIA in Saskatoon. Akon met with his supervisor on Nov. 28, 2011, to discuss what he perceived as favouritism and disrespectful treatment in the workplace, according to the written decision by Judge Yves de Montigny. Akon’s initial written complaint followed four days later; among the unfair treatment he cited were verbal abuse, dismissive body language such as eye rolling and hand gestures, dismissal of complaints about verbal abuse from Akon’s co-workers and biased marking of a certification test.

The employer then appointed regional director Ken Schmidt to investigate Akon’s complaint, but Schmidt concluded on Feb. 2, 2012 that Akon’s accusations did not amount to harassment. Later that year, Joanne Penner, a health and safety officer, issued a direction stating that the CFIA had violated the Canada Labour Code by failing to hire an impartial and competent person to conduct the fact-finding process.

In November of last year, a federal court ruled that the harassment that Akon had allegedly faced could constitute a form of workplace violence, even though there had been no use or threat of physical force. Judge de Montigny reinforced that conclusion upon the CFIA’s appeal, in a decision that confirmed that employers do not have the right to determine what workplace violence or harassment is.

“Absent a situation where it is plain and obvious that the allegations fall outside the scope of the definition of workplace violence, the employer must appoint a ‘competent person’ to investigate when the matter cannot be resolved with the employee,” Judge de Montigny wrote in her decision.

“It was not the employer’s role to decide at that early stage, without even meeting with the employee, whether the particular conduct alleged was serious enough in the circumstances so as to constitute workplace violence,” the judge added. “That determination should only be made by a competent person with a full understanding of the circumstances following an investigation.”

The Court of Appeal decision is available online at http://www.canlii.org/en/ca/fca/doc/2015/2015fca273/2015fca273.html.