Advisory Circulars

Commercial & Business Aviation

OVERVIEW OF THE AMENDMENTS TO
PART II OF THE CANADA LABOUR CODE

Subject:  8. Internal Complaint Resolution Process
(section 127.1)

AMENDED CODE EXPLANATION/APPLICATION
  The internal complaint resolution process provides a mechanism for the work place parties to resolve complaints internally with little or no intervention from the health and safety officer (CASI-OH&S in Transport Canada, Civil Aviation). This is now a mandatory process and failing to follow it is considered a contravention.
127.1(1) An employee who believes on reasonable grounds that there has been a contravention of this Part or that there is likely to be an accident or injury to health arising out of, linked with or occurring in the course of employment shall, before exercising any recourse available under this Part, except the rights conferred by sections 128, 129 and 132, make a complaint to the employee's supervisor. This is the first step in the resolution of a complaint. The employee informs his or her supervisor of the contravention. The internal complaint resolution process does not apply to refusals to work (under sections 128 and 129) or to pregnant and nursing employees (under section 132).
(2) The employee and the supervisor shall try to resolve the complaint between themselves as soon as possible. The first step will result in the supervisor correcting the contravention or will trigger the internal complaint resolution process.
(3) The employee or the supervisor may refer an unresolved complaint to a chairperson of the work place committee or to the health and safety representative to be investigated jointly
(a) by an employee member and an employer member of the work place committee; or
(b) by the health and safety representative and a person designated by the employer.
Once the process is in motion, committee members are appointed to investigate the unresolved complaint. The intent of this clause is to help increase the reliance on an internal responsibility system, as well as reduce the need for government intervention in the work place.
(4) The persons who investigate the complaint shall inform the employee and the employer in writing, in the form and manner prescribed, if any is prescribed, of the results of the investigation. The persons who are investigating the complaint must inform all parties of the results of their investigation. If a form has not been prescribed by regulation, any form is acceptable.
(5) The persons who investigate the complaint may make recommendations to the employer with respect to the situation that gave rise to the complaint, whether or not they conclude that the complaint is justified. Even though it is found that there is no contravention to the Code, employers may be recommended to remedy a situation that lead to the complaint. The employer is not obligated to adopt the recommendation but should be encouraged to give justifiable reasons for not adopting it.
(6) If the persons who investigate the complaint conclude that the complaint is justified, the employer, on being informed of the results of the investigation, shall in writing and without delay inform the persons who investigated the complaint of how and when the employer will resolve the matter, and the employer shall resolve the matter accordingly. If it is revealed that there is a contravention to the Code, the employer must resolve the matter in a reasonable time frame.
(7) If the persons who investigate the complaint conclude that a danger exists as described in subsection 128(1), the employer shall, on receipt of written notice, ensure that no employee may use or operate the machine or thing, work in the place or perform the activity, that constituted the danger until the situation is rectified. In a case where the persons investigating the complaint observe a dangerous situation or determine that there could be potential danger, they have the authority to require that the employer stop the operation and not use the equipment until it has been repaired. Essentially, this amounts to "lock out" privileges being granted to the work place parties. If the employer disagrees, a health and safety officer may be notified, but the equipment must be locked out first.
(8) The employee or employer may refer a complaint that there has been a contravention of this Part to a health and safety officer in the following circumstances:
(a) where the employer does not agree with the results of the investigation;
(b) where the employer has failed to inform the persons who investigated the complaint of how and when the employer intends to resolve the matter or has failed to take action to resolve the matter; or
(c) where the persons who investigated the complaint do not agree between themselves as to whether the complaint is justified.
This provision clearly sets out the conditions in which a health and safety officer may be called in when the internal complaint resolution process has failed.
(9) The health and safety officer shall investigate, or cause another health and safety officer to investigate, the complaint referred to the officer under subsection (8). The health and safety officer will investigate or have another health and safety officer investigate the matter.
(10) On completion of the investigation, the health and safety officer
(a) may issue directions to an employer or employee under subsection 145(1);
(b) may, if in the officer's opinion it is appropriate, recommend that the employee and employer resolve the matter between themselves; or
(c) shall, if the officer concludes that a danger exists as described in subsection 128(1), issue directions under subsection 145(2).
Once the health and safety officer has investigated the matter, he or she will take appropriate action. If the matter does not involve an infraction or a situation of danger, then it should be referred back to the work place parties to resolve.
(11) For greater certainty, nothing in this section limits a health and safety officer's authority under section 145. This provision clarifies that a health and safety officer's power and duty to issue directions is not limited to the internal complaint resolution process.
 
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