Board bolsters reprisal protections

Since s. 32 was added as an amendment to the OHSA
there has been fiery debate about how s. 32 is to be interpreted. The section
requires employers to develop workplace violence and harassment policies. That
much is clear. What has been unclear is whether a worker who made a complaint
under one of these policies could be protected against reprisals under s. 50 of
the OHSA for making a complaint.

In Investia[1],
an early decision on the subject, the Board stated that it would not have
jurisdiction to hear an application made by a worker who asserted that he or
she had been the subject of a reprisal. In Investia
this was merely a statement on the jurisdictional effect of s. 32 and were not
part of the Board’s decision.

However, subsequent decisions tended to follow this
line, essentially leaving workers out in the cold[2].
At Watson Labour Lawyers we have long been critical of these decisions and have
been convinced that the reasoning in Investia
is flawed. In an earlier post, found here,
we describe the untenable nature of the Investia

It’s a pleasure to see a recent decision has departed
from Investia and taken a more
sensible tack with regard to the protections against reprisals that stem from a
complaint made under s. 32. In Ljubola v
The Aim Group Inc and General Motors of Canada Limited
(AIM)[3] the
Board made a finding that, in contrast to previous decisions, the anti-reprisal
provisions of the OHSA can be engaged
when a worker suffers reprisals as a result of making a complaint under the
workplace violence and harassment provisions. In other words, the Board ruled
that it could have jurisdiction to hear such applications.

The reprisal provisions in the OHSA forbid an
employer or a person acting on behalf of an employer from penalizing a worker
simply because the worker has acted in compliance with the OHSA or any of its regulations,
has sought the enforcement of the Act or regulations, or has given evidence in
a proceeding in respect of the enforcement of the Act or the regulations, or in
an inquest under the Coroners Act.[4]

The significance of the Aim decision lies in the Board’s finding that a worker who is
penalized after making a harassment complaint related to the employer’s
workplace policy against harassment, is seeking to enforce the Act. As a
result, the anti-reprisal provisions of the Act apply.

Section 32 may not come complete with an explicit
enforcement mechanism, but the Board found that the Act does implicitly provide
a worker the right to make workplace harassment complaints without fear of
employer reprisals. Section 32.06 reads:

An employer shall
develop and maintain a program to implement the policy with respect to
workplace harassment required under clause 32.0.1(1)(b).

 The Board found that the words “develop and maintain
a program to implement the policy” afforded workers the right to the
anti-reprisal provisions of s. 50 and gave the Board jurisdiction to hear
reprisal complaints stemming from complaints made in accordance with s. 32:


and maintaining a program to implement the policy must be more than 
merely recording the elements of the
policy in writing. It must mean there is an obligation
to actively carry out that policy. If this is correct, there is an obligation
on an employer to enable workers to make
complaints about incidents of workplace harassment.
Terminating a worker because they made such a complaint would therefore be terminating the worker because they
sought enforcement of the Act or were acting in compliance with the Act[5]

Terminating a worker because they sought enforcement
of the Act brings both the complaint and the subsequent reprisal within the
purview of the anti-reprisal provisions of s. 50 of the Act. From this
standpoint, it’s clear the Board has jurisdiction to hear the reprisal
complaint of a worker.

The Board went on to criticize the result of an
interpretation of s. 32 that ensues if jurisdiction to hear reprisal complaints
is not entertained by the Board:


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.[6]

The Board notes that the reasoning in Investia and subsequent decisions
following Investia would free the
employer of any real obligations while simultaneously destroying any real right
a worker has to make a complaint:

            To interpret
the Act in this manner would be to strip the employer’s obligation to have a    program to implement their workplace
harassment policy through which workers may make
a complaint of any meaning.[7]

As a result, the Board declined to follow Investia, “to the extent that it stands
for the proposition that the Act does not prohibit employers from penalizing or
retaliating against workers for making a complaint about workplace harassment
under the employer’s mandatory policy.”[8]

[1] Conforti v. Investia
Financial Services Inc
., 2011 CanLII 60897 (“Investia“)
[2] See for example: Walters v. PPL Aquatic, Fitness and Spa
Group Inc
., 2012 CanLII 77, Harper v.
Ludlow Technical Products Canada Ltd
., 2011 CanLII 73172, Barton v. Commissionaires, 2011 CanLII
18985, Nunes v. AGF Albrecht, 2012
CanLII 67903, Keeprite Refrigeration
(National Refrigeration Air Conditioning Canada Corp),
[2012] O.L.R.D. No.
220 and Simcoe County District School
[2012] O.L.R.D. No. 39.
[3] [2013] O.L.R.D. No. 4309
OHSA, s. 50
[5] Ibid at para 58.
[6] Ibid at para 50.
[7] Ibid at para 49.
[8] Ibid at para 59.

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