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Workers in Ontario may be surprised to learn that the much-publicized workplace violence and harassment legislation implemented by the Ontario government in 2010 does not give them a legal right to a harassment-free workplace.

Late last year, the Ontario Labour Relations Board (“OLRB” or the “Board”) revisited the harassment provisions that the province introduced into the Occupational Health and Safety Act (“OHSA“) through Bill 168.

In a reversal of its previous position, the Board confirmed that it will hear complaints of workplace harassment reprisal by employers who have penalized or retaliated against a worker for making a harassment complaint under the employer’s workplace harassment policy. At the same time, though, the Board confirmed that the OHSA does not expressly require employers to provide an environment that is free from workplace harassment, which the Act defines as “vexations comment or conduct… that is known or ought reasonably to be known to be unwelcome“.

The OLRB regularly hears cases where an employee has been disciplined or terminated for raising OHSA compliance issues, in violation of section 50 of the Act. That section prohibits reprisals by employers against employees who act in compliance with or seek to enforce their rights under the Act. Specifically, employers are prohibited from threatening termination, engaging in threatening behaviour, intimidation, discipline, or applying any penalty because the worker acted in compliance with the Act or attempted to have the Act enforced.

However, in a 2011 case involving a workplace harassment reprisal complaint, the Board concluded that the conduct complained of – being dismissed for making a harassment complaint – was not a violation of the OHSA: Conforti v. Investia Financial Services Inc.

The Board noted that its authority to deal with a matter under s. 50 of the OHSA arose when a worker complained that he or she had been subject to dismissal or discipline, threat of dismissal or discipline, or had been intimidated, threatened or coerced by his or her employer because the worker had (1) “acted in compliance with the Act“; (2) given evidence; or “sought the enforcement of the Act or regulations“.

Although this provision appears quite broad, the Board found that it had no jurisdiction to deal with reprisals against employees who brought a workplace harassment complaint to their employer.

The Board concluded that by filing a harassment complaint, an employee was not “acting in compliance” or “seeking to enforce” the Act, because the language of Bill 168 specifically omitted an obligation to prevent workplace harassment and provided no specific rights to a worker with respect to workplace harassment.

The Board analyzed the language of Bill 168 and noted that the only obligations imposed on employers with respect to workplace harassment (different ones applied with respect to workplace violence) were to create a policy, to develop and maintain a program to implement the policy, and to provide workers with information and instruction on the contents of the policy and program.

In the Conforti case, the employer did have a workplace harassment policy in place, in compliance with the requirements of Bill 168. The Board found that it would have jurisdiction under section 50 only where an employer did not have a harassment policy, a worker complained about the failure to have a policy (not about having experienced harassment), and the worker suffered a reprisal because of having made the complaint.

The Conforti decision was welcomed by employers, as it restricted their exposure to harassment applications to that very limited scenario.

The Board conducted a fresh analysis of its jurisdiction to hear harassment reprisal complaints in November 2013 in the case of Ljuboja v. The Aim Group Inc. and General Motors of Canada Limited.

Mr. Ljuboja was a managerial employee who worked at a GM plant through a series of fixed-term contracts. He reported two incidents of alleged verbal abuse from his direct supervisor. Mr. Ljuboja’s contract was up for renewal, but two weeks prior to the contract renewal date he was informed that his employment was being terminated. He was not permitted to finish his contract and was told that the termination was not a result of his performance. He alleged that he had been terminated in whole or in part because of his complaints against his supervisor.

The employer made a preliminary objection. It argued that, following the reasoning of the Conforti decision, the Board did not have jurisdiction to hear Mr. Ljuboja’s application under s. 50 of the OLRA.

Mr. Ljuboja submitted that the Act provided him with the right to a harassment-free workplace and that his employment had been terminated for enforcing his rights under the Act.

The Board allowed Mr. Ljuboja’s application, overruling the employer’s objection. The Board expressly rejected the reasoning in Conforti to the extent that that case stated the Board had no jurisdiction to deal with reprisals arising from harassment complaints.

The Board found that it could not have been the intention of the harassment legislation to require an employer to maintain an anti-harassment policy, but then subsequently allow the employer to terminate the employment of an individual who brought a complaint under the policy. The Board acknowledged that a worker who makes a workplace harassment complaint to his or her employer is ‘seeking the enforcement of the Act‘, trying to get the employer to comply with its obligation to enable the worker to make a complaint.

Alternatively, the worker was ‘acting in compliance with the Act‘ by accessing the statutorily prescribed mechanism by which workers are able to bring forward workplace complaints.

This broader interpretation allowed the Board to find that reprisals for filing a complaint do fall within the requirement in section 50 of the OHSA for ‘complying with’ or ‘seeking to enforce’ the Act.

The Board’s reasoning in the Ljuboja decision was subsequently adopted in Murphy v. The Carpenters’ District Council of Ontario.

Following the Ljuboja decision, the Board may now deal with reprisals against workers who file workplace harassment complaints with their employers. On the other, the decision made it clear that the Act does not guarantee a harassment-free workplace. Rather it requires only that employers maintain a policy and program of anti-harassment in the workplace.

The effect of this is that a worker has a right to a harassment policy and program, but not to a specific outcome or process under the Act. If an employee is not satisfied with the outcome of a harassment investigation or the circumstances that gave rise to the complaint in the first place, he or she will not be able to look to the Ontario Labour Relations Board for assistance.

In its decision in the Conforti case, the Board suggested that employees could seek recourse under Human Rights legislation and through the courts. This will not be helpful for most employees who have not been satisfied with a harassment investigation or its outcome.

For bullying and other types of harassment not based on prohibited grounds, the Human Rights Code will not offer any recourse. Similarly, except in cases where there has been a termination of employment, it will be challenging for employees to recover common law damages.

It remains to be seen whether a substantive right to a harassment free workplace will eventually be recognized. Given the Ontario Labour Relations Board’s reluctance to recognize such an obligation under the Act, and the courts’ reluctance to provide a remedy at common law, employees will still have to rely on their employers to provide an effective and proactive program. Where an employer’s program fails to provide this safe environment, the Board will not intervene. For the moment, being able to seek recourse from reprisals at the Board may be the practical limit of an employee’s recourse against an employer who fails to protect the employee from workplace harassment.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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