The Ontario Labour Relations Board (“OLRB”) recently made an important decision which may represent a significant shift in how it approaches allegations that employers have engaged in reprisals against workers who have filed harassment complaints. Under section 50 of the Occupational Health and Safety Act (“OHSA”), the OLRB has the power to hear cases where a worker alleges that the employer has taken an adverse action (i.e., discipline or termination) against them for acting in compliance with or seeking enforcement of the OHSA. Reprisal cases often relate to allegations that an employee has been terminated for raising OHSA compliance issues with the employer.
Bill 168 added a number of provisions to the OHSA relating to workplace violence and harassment. Interestingly, Bill 168 did not establish a free standing right for a worker to be free from workplace harassment. Instead, the legislation included a number of provisions which required the employer to implement a mechanism whereby workers could complain about harassment and to develop a protocol to investigate and respond to such complaints.
In Conforti v Investia Financial Services Inc, 2011 CanLII 60897 (ON LRB) (“Conforti“), the Board commented that since the OHSA did not include a right to for a worker to be free work from workplace harassment, it did not likely have the power to hear cases from workers alleging that they were subject to a reprisal as a result of making a harassment complaint. The Board held that only a very narrow range of fact situations would come within the ambit of section 50 for the purposes of harassment (such as cases where the employer refused to create a harassment policy which allowed workers to report incidents). The Board has since followed the approach taken in Conforti in a number of other cases.
However, the Board has now signalled a potential departure from the reasoning in Conforti and the cases which followed it. In Ljuboja v Aim Group Inc, 2013 CanLII 76529 (ON LRB), the worker alleged he was employed by an agency which placed him on a series fixed term contracts in a supervisory role at an automotive plant. During a meeting, the worker alleged that another supervisory employee harassed him when the employee made a number of profanity laden comments directed at him.
The comments did not include a threat of physical violence. The worker made a harassment complaint to the management of the plant and his employment was terminated shortly thereafter. The worker contends that his termination was motivated at least in part because of the fact he filed a harassment complaint. The agency and the automotive plant denied the allegations and sought dismissal of the worker’s complaint without a hearing largely on the basis of the Board’s reasoning in Conforti.
Somewhat surprisingly, the Board chose not to follow the approach discussed in Conforti. The Board acknowledged that the OHSA does not include a free standing right to be free from harassment. However, it noted that the OHSA requires employers to develop and maintain a program to implement the workplace harassment policy and that the policy must provide a mechanism for workers to report harassment.
The Board held that since the OHSA requires a mechanism for workers to report harassment, taking an adverse action against an employee for doing so could potentially amount to a reprisal within the meaning of section 50. The Board refused to dismiss the case on a preliminary basis. It should be noted that the Board also noted that section 50 cases will rarely focus on the actual harassment itself and will be confined to an analysis of whether the worker suffered a reprisal as a result of filing a complaint. The Board also stated that complaints relating to the method of investigation or the ultimate result of the investigation will rarely be successful.
There is no question that the outcome of this case is disappointing for employers and opens another potential forum for workers to pursue litigation in the harassment context. We agree with the reasoning of the Board in Conforti that the absence of an explicit right in the OHSA to be free from workplace harassment ought to serve as a bar to pursuing reprisal cases in this context. It is still possible (although not likely in our view) that other Vice-Chairs will continue to follow Conforti.
However, it seems that the Board is now open to hearing this type of case and this presents another legal risk when terminating an employee who has made a harassment complaint. We note the Board has the power to decline to hear a section 50 case even if the worker makes allegations which could be considered a reprisal. We expect that the Board will decline to hear a significant number of these cases if another forum (i.e., the Human Rights Tribunal, an arbitrator or a court) could actually deal with the merits of the harassment complaint itself.
Employers must appreciate that the “sky is not falling” as a result of this decision. The reality is that terminating an employee who filed a harassment complaint has always been a risky endeavour from a litigation perspective and this decision simply adds another potential risk to the legal minefield. Employers who are terminating employees in these circumstances must be able to prove that the termination was not motivated in any manner by the harassment complaint. In order to prove the termination was not a reprisal, clear evidence of another reason for the termination will be required.
This blog was first published on First Reference Talks, January 8, 2014.