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Ontario Labour Relations Board Lacks Jurisdiction to Enforce Compliance with Anti-Harassment Policies Implemented Pursuant to Bill 168

The recent decision of the Ontario Labour Relations Board (the “Board”) in Re. Investia Financial Services Inc. defines the scope of the Board’s authority to address and remedy complaints of harassment under the Occupational Health and Safety Act (the “Act”). The Board makes it clear that while the Act requires employers to develop, implement and update policies providing for a harassment free workplace, the Act does not regulate or enforce the standards by which employers must abide to ensure a harassment free workplace, nor does it dictate how an employer must apply its anti-harassment policies and address complaints of harassment.

Shlomo Conforti was a financial advisor with the employer, Investia Financial Services (“Investia” or the “Employer”). In the course of his duties, he received email correspondence from two (2) employees directing him to comply with Investia’s trading policies. Mr. Conforti took exception to these directives and sent aggressive email correspondence in reply.  Mr. Conforti’s aggressive responses were deemed inappropriate and abusive by Investia’s management team who advised him to cease his unprofessional conduct.  Mr. Conforti responded with a request for management to undertake a harassment investigation in accordance with its anti-harassment policies.  Believing that Mr. Conforti’s allegations were vexatious, management did not comply with the request. Moreover, in response to Mr. Conforti’s continuing unprofessional, belligerent and insubordinate communications to management, Investia decided to terminate his employment.

In response to his dismissal, Mr. Conforti filed a complaint with the Board under the Act’s anti-reprisal prohibitions contained in Section 50.  Mr. Conforti alleged that he was dismissed contrary to Section 50 because his dismissal was retribution for his complaint of harassment to management and his request for a harassment investigation.

The Board held that its authority to address matters under Section 50 of the Act arises, in part, where a worker has been dismissed or disciplined or otherwise intimidated because a worker has sought enforcement of the Act.  Therefore, for the Board to take jurisdiction over Mr. Conforti’s complaint, he was required to show that his dismissal was in response to his attempt to have Investia comply with prohibitions against harassment, contained in the Act.

The Board found that the Act did not contain protections against harassment or an employer’s failure to investigate complaints of harassment.  Rather, the amendments pursuant to Bill 168 simply require employers to develop, implement and revise, from time to time, polices pertaining to workplace violence and harassment.  Mr. Conforti did not complain that he was dismissed from his employment for complaining about the employer’s failure to develop, implement or revise its workplace harassment policies.  If Mr. Conforti wanted a remedy for Investia’s failure to investigate his complaint of harassment, or to otherwise follow its own policies prohibiting workplace harassment, he was required to pursue it in another forum that actually had jurisdiction over enforcing an employer’s obligation to investigate and ensure a harassment free workplace.  Human rights tribunals or courts would be two examples where such complaints may be appropriately addressed.

 Re. Investia Financial Services is the second most significant decision to arrive recently in the wake of the Bill 168 amendments. Earlier, we blogged about The Corporation of the City of Kingston and CUPE  where an arbitrator relied upon the Bill 168 amendments to find that the dismissal for cause of a 28 year employee who threatened a co-worker was appropriate.  While the City of Kingston case demonstrates that workplace violence and harassment issues are of much greater significance and severity given Bill 168, therefore warranting decisive employer action in response to such issues, Investia Services underscores that the purpose of Bill 168 is simply to ensure that Employers are taking issues of workplace violence and harassment seriously.   Employees with complaints about an employer’s deficient harassment investigation or its failure to comply with its own harassment policy must address those concerns in a forum other than the Ontario Labour Relations Board and rely upon an employer’s legal duties not contained in the Occupational Health and Safety Act.

Please feel free to contact any of our lawyers to discuss this important case in the continuing evolution of the application of Bill 168 to Ontario workplaces. 

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.