On June 15, 2010, Bill 168, now known as
s. 32 of the Occupational Health and
Safety Act (OHSA), amended the OHSA.
The Act now requires employers to create workplace violence and harassment
policies, to develop programs to implement these policies, and to provide
employees with information regarding these policies and programs. The Act does
not dictate how employers should investigate harassment complaints, nor does it
detail how an employer should protect its employees.
The amendment to the OHSA introduced an exciting potential
for workers to not only make harassment complaints but also to be protected
from harassment complaint reprisals. To date, however, the Ontario Labour
Relations Board (OLRB) has failed to assume jurisdiction over said reprisals
and has effectively squashed the hope and protections that workers should
rightly receive.
for workers to not only make harassment complaints but also to be protected
from harassment complaint reprisals. To date, however, the Ontario Labour
Relations Board (OLRB) has failed to assume jurisdiction over said reprisals
and has effectively squashed the hope and protections that workers should
rightly receive.
Are
Reprisals for Harassment Complaints a Violation of the OHSA?
Reprisals for Harassment Complaints a Violation of the OHSA?
The OLRB has the power to provide reprisal
relief under section 50 of the OHSA. The Board may assume jurisdiction where a worker suffers reprisals and has either: “acted in compliance with
the Act”, has “given evidence” or “has sought the
enforcement” of the Act.
relief under section 50 of the OHSA. The Board may assume jurisdiction where a worker suffers reprisals and has either: “acted in compliance with
the Act”, has “given evidence” or “has sought the
enforcement” of the Act.
Even where
one or more of these factors exist, however, the Board can only take
jurisdiction if a piece of legislation permits it to. Since s. 32 does not stipulate how an employer should investigate
or protect a worker who makes a harassment complaint, early decisions have found that
so long as an employer fulfills its basic obligations under s. 32, the Board
has no jurisdiction to deal with harassment reprisal complaints[1].
As was stated in Conforti
v Investia Financial Services Inc[2]:
one or more of these factors exist, however, the Board can only take
jurisdiction if a piece of legislation permits it to. Since s. 32 does not stipulate how an employer should investigate
or protect a worker who makes a harassment complaint, early decisions have found that
so long as an employer fulfills its basic obligations under s. 32, the Board
has no jurisdiction to deal with harassment reprisal complaints[1].
As was stated in Conforti
v Investia Financial Services Inc[2]:
If an individual
complains under an employer’s workplace harassment policy and doesn’t like the
way the employer handled the investigation (i.e. it didn’t interview anyone),
and then that person complains to the employer about its poor investigation and
is fired, the Board appears not to have the authority under section 50 to deal
with that situation.
complains under an employer’s workplace harassment policy and doesn’t like the
way the employer handled the investigation (i.e. it didn’t interview anyone),
and then that person complains to the employer about its poor investigation and
is fired, the Board appears not to have the authority under section 50 to deal
with that situation.
The
Problem with the Board’s Decision
Problem with the Board’s Decision
These Board decisions are deeply
troubling. If Investia and Ludlow carry the day, under the OHSA a worker will have no recourse to
the OLRB if he or she should suffer harassment complaint reprisals. In theory,
an employer could execute a workplace harassment policy and program and then
fire any employee who dared to complain about the employer’s methods of
investigating harassment complaints.
troubling. If Investia and Ludlow carry the day, under the OHSA a worker will have no recourse to
the OLRB if he or she should suffer harassment complaint reprisals. In theory,
an employer could execute a workplace harassment policy and program and then
fire any employee who dared to complain about the employer’s methods of
investigating harassment complaints.
These early decisions have interpreted
the legislation with undue narrowness. Such narrow interpretation cannot stand.
Legislation is to be interpreted broadly. In Rizzo & Rizzo Shoes Ltd, the Supreme Court stated that:
the legislation with undue narrowness. Such narrow interpretation cannot stand.
Legislation is to be interpreted broadly. In Rizzo & Rizzo Shoes Ltd, the Supreme Court stated that:
Today
there is only one principle or approach, namely, the words of an Act are to be
read in their entire context and in their grammatical and ordinary sense
harmoniously with the scheme of the Act, the object of the Act, and the
intention of Parliament[3].
there is only one principle or approach, namely, the words of an Act are to be
read in their entire context and in their grammatical and ordinary sense
harmoniously with the scheme of the Act, the object of the Act, and the
intention of Parliament[3].
The courts have also found that
it’s permissible to ignore a restrictive view of legislation if “a more liberal
approach is dictated by Parliament’s overall intent.[4]”
it’s permissible to ignore a restrictive view of legislation if “a more liberal
approach is dictated by Parliament’s overall intent.[4]”
these Decisions Conclusive?
There is hope these decisions do
not close the matter. In Walters
v PPL Aquatic, the Board
acknowledged that Ludlow found the
Board did not have jurisdiction to deal with reprisals stemming from harassment
complaints, but also then went on to consider the case under the assumption
that there may be a protected right
under the OHSA to complain of
harassment without reprisal. The Board made these considerations even while
noting that other decisions “suggest” there is no such protected right under
the OHSA[5].
However, to “suggest” is not to definitely determine. In theory, then, until
the possibility of bringing harassment reprisal complaints under s. 50 is
definitively ruled out, it should be possible for such complaints to be brought
to the Board.
Overall
Intent
Intent
The OHSA is remedial in nature, its object and underlying legislative
intent, being to protect workers from health and safety hazards on the job[6]. The
only way to attain the object of the Act is to allow the Board to hear
harassment reprisal complaints under s. 50. That the Board would be able to
assume such jurisdiction is implied by the purpose of the Act.
intent, being to protect workers from health and safety hazards on the job[6]. The
only way to attain the object of the Act is to allow the Board to hear
harassment reprisal complaints under s. 50. That the Board would be able to
assume such jurisdiction is implied by the purpose of the Act.
All Reasonable Precautions to Protect a Worker
Legislative intent aside, the Board is
not as powerless to deal with harassment reprisal complaints as Investia would have us believe. Whether or not s. 32 includes an enforcement mechanism, a
worker who makes a harassment complaint is still seeking to enforce the Act, if
not through s. 32 then via s. 25(2)(h), which is a general duty clause that
obliges an employer to take all reasonable precautions to protect a worker.
This includes the obligation to provide a safe and harassment free workplace.
On its face, s. 25(2)(h) complements the object of the Act to protect the
health and safety of workers. There is no reason s.50 relief should not be
available to workers just because s. 32 fails to stipulate precisely how an
employer should investigate and protect workers. Section 25(2)(h) should suffice
to engage s. 50 relief.
not as powerless to deal with harassment reprisal complaints as Investia would have us believe. Whether or not s. 32 includes an enforcement mechanism, a
worker who makes a harassment complaint is still seeking to enforce the Act, if
not through s. 32 then via s. 25(2)(h), which is a general duty clause that
obliges an employer to take all reasonable precautions to protect a worker.
This includes the obligation to provide a safe and harassment free workplace.
On its face, s. 25(2)(h) complements the object of the Act to protect the
health and safety of workers. There is no reason s.50 relief should not be
available to workers just because s. 32 fails to stipulate precisely how an
employer should investigate and protect workers. Section 25(2)(h) should suffice
to engage s. 50 relief.
To use a general duty clause as a basis
for jurisdiction to deal with a harassment and reprisal complaint under the OHSA is not without precedent. In a
decision made prior to Bill 168, the Board assumed jurisdiction to deal with a
harassment complaint, even though the Act lacked a specific mechanism bestowing
this jurisdiction. This was based in part on a section of the Act which places
the same obligation on managers as s. 25(2)(h) does on employers. The Board
stated that a supervisor cannot act with impunity and must exercise his or her
authority in a manner consistent with the OHSA.
[7] We
would submit that an employer which terminates an employee for exercising his
or her right to a safe and harassment free workplace abuses its authority and
fails to take every reasonable precaution to protect the worker. It could well be that the reason s. 32 does
not contain an enforcement mechanism is that it doesn’t need one – adequate
jurisdictional powers may flow from s. 25(2)(h).
for jurisdiction to deal with a harassment and reprisal complaint under the OHSA is not without precedent. In a
decision made prior to Bill 168, the Board assumed jurisdiction to deal with a
harassment complaint, even though the Act lacked a specific mechanism bestowing
this jurisdiction. This was based in part on a section of the Act which places
the same obligation on managers as s. 25(2)(h) does on employers. The Board
stated that a supervisor cannot act with impunity and must exercise his or her
authority in a manner consistent with the OHSA.
[7] We
would submit that an employer which terminates an employee for exercising his
or her right to a safe and harassment free workplace abuses its authority and
fails to take every reasonable precaution to protect the worker. It could well be that the reason s. 32 does
not contain an enforcement mechanism is that it doesn’t need one – adequate
jurisdictional powers may flow from s. 25(2)(h).
Surely it cannot be that the Legislature
intended the amendments to the OHSA to
at once address workplace harassment but provide no jurisdiction for the OLRB
to hear harassment complaint reprisals. The
very fact that Bill 168 was drafted in the first place speaks to the legislative
intent to protect workers from harassment. A broad interpretation is required
in order to give s.32 the relevance the Legislature likely intended. Anything
short of that is to make the harassment language of the amended OHSA almost completely meaningless. Section
50 relief is vital to the protection of workers against reprisals. Moving
forward, we hope future decisions of the OLRB will recognize the Board’s
jurisdictional authority to protect workers from employer reprisals.
intended the amendments to the OHSA to
at once address workplace harassment but provide no jurisdiction for the OLRB
to hear harassment complaint reprisals. The
very fact that Bill 168 was drafted in the first place speaks to the legislative
intent to protect workers from harassment. A broad interpretation is required
in order to give s.32 the relevance the Legislature likely intended. Anything
short of that is to make the harassment language of the amended OHSA almost completely meaningless. Section
50 relief is vital to the protection of workers against reprisals. Moving
forward, we hope future decisions of the OLRB will recognize the Board’s
jurisdictional authority to protect workers from employer reprisals.
[1] See: Shlomo Conforti v Investia Financial Services Inc
and Industrial Alliance Insurance and Financial Services Inc, 2011 CanLII
60897 (ONLRB) and Harper v. Ludlow Technical Products Canada Ltd, 2011 CanLII 73172 (ON LRB).
and Industrial Alliance Insurance and Financial Services Inc, 2011 CanLII
60897 (ONLRB) and Harper v. Ludlow Technical Products Canada Ltd, 2011 CanLII 73172 (ON LRB).
[2] Investia at para 17.
[5] Walters v PPL
Aquatic, Fitness and Spa Group Inc 2012 CanLII 77 (ON LRB) at para 24.
Aquatic, Fitness and Spa Group Inc 2012 CanLII 77 (ON LRB) at para 24.
[7] Toronto Transit
Commission v Amalgamated Transit Union (Strina Grievance) [2004] OLAA No
565 (Shime) at para 237.
Commission v Amalgamated Transit Union (Strina Grievance) [2004] OLAA No
565 (Shime) at para 237.