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OLRB Agrees to Hear Complaints related to Workplace Harassment Policies

Two recent cases at the Ontario Labour Relations Board (OLRB) may represent a new stance with respect to enforcing Bill 168 and the workplace harassment provisions under the Occupational Health and Safety Act (OHSA). The two decisions are Ljuboja v Aim Group Inc., and Abick v Ministry of Government Services (Ontario Government).  Prior to discussing these decisions, the previous stance of the OLRB, from Conforti v Investia Financial Services Inc., will be reviewed.

In Conforti v Investia Financial Services Inc. an employee was allegedly terminated after filing a harassment complaint. In response, the employee filed a S. 50 Reprisal complaint against the employer. The OLRB dismissed the complaint stating that the OHSA does not provide the Board jurisdiction to entertain this type of complaint. The recently added Bill 168 provisions require an employer to implement a workplace harassment policy and program. However, it does not provide specific rights to workers. Therefore a worker could raise an issue with the lack of a program/policy and would be free from reprisal for doing so. But the OLRB ruled that the jurisdiction of the Board does not include the application of the policy and program.

Ljuboja v Aim Group Inc.

In this case an employee (Ljuboja) filed an official harassment complaint with their employer following a heated exchange with a colleague. Shortly thereafter the employee who made the complaint was terminated. In response, Ljuboja filed a complaint of reprisal with the OLRB. The decision (similar to Conforti) is whether the case lacks a prima facie case and should be dismissed.

The Conforti decision was thoroughly reviewed due to the similar facts and arguments made by the parties. Vice-Chair Nyman agreed with most of the Conforti decision but ultimately dismissed the motion based on one specific divergence of opinion.

In the decision, the Vice-Chair Nyman agreed with Conforti that workers are protected from complaining about the lack of a harassment/violence policy, and the failure to post either policy in the workplace. The Vice-Chair also agreed that the OHSA does not require employers to provide a harassment free workplace, nor any particular mode of investigation or outcome following a harassment complaint. However, the decision concluded that employees must be able to utilize the legislatively mandated policy (i.e. submit a complaint) without reprisal. This finding was based on the interpretation of the OHSA’s language and overriding purpose as a public welfare statute designed to promote public health and safety. The concluding language is found at paragraph 50 of the decision:

50.  An interpretation that allows employers to penalize or retaliate against workers who make a workplace harassment complaint would entirely undermine the procedural mechanism that the Act creates through which harassment issues can be brought forward in the workplace. If workers can be terminated for making a complaint that the employer’s legislatively imposed policy enables them to do, then only the most intrepid or foolish worker would ever complain. In practical terms, there would be no measure or procedure for making a complaint of harassment. Moreover, the occupational health and safety value, whatever it may be (and I have speculated above as to some of the possible values of requiring such a process), that caused the Legislature to impose this obligation on employers would be eviscerated.

Abick v Ministry of Government Services (Ontario Government)

In this case an employee complained that his employer violated the OHSA by failing to include harassment policies that support the Act’s requirements and by failing to carry out investigations of incidents and complaints of workplace harassment.

This decision involved a preliminary motion by the employer to have the complaint dismissed for lack of a prima facie case. The employer relied heavily on the decision of Conforti v Investia Financial Services Inc. for support of their position. Despite Conforti, the Board ruled that the case is distinct from a reprisal complaint. In this instance, the employee’s main complaint focuses on the sufficiency of the workplace harassment policy as required by the OHSA. Therefore the motion to have it dismissed for lack of a prima facie case was rejected.

The lawyers at CCPartners understand an employer’s responsibilities with respect to workplace violence and harassment. We can help you understand and implement the necessary measures to ensure a safe workplace and remain compliant with the OHSA. Neither of the two decisions has been finally decided and we will be sure to keep employers up to date regarding any new developments.