Friday, November 18, 2011

Bill 168: Harassment Complaints and Reprisals

I came across an interesting case today, a recent decision by the Ontario Labour Relations Board in Conforti v. Investia Financial Services Inc.  Two issues arise: What does "harassment" mean, and what are the limits of an employee's rights following the implementation of Bill 168?

The Facts

Put briefly, Mr. Conforti was disciplined for emails which were "less than professional, specifically belligerent and derogatory in nature".  The emails are reproduced in the decision, and, as the Board observes, this characterization was "undoubtedly accurate".  He was advised that further such communications would result in the termination of his employment.

He then sent an email back a few days later, alleging harassment, in a tone which remained disrespectful, and was fired two days later.  He applied to the OLRB for recourse based on reprisal.

What does "harassment" mean?

The Occupational Health and Safety Act now defines workplace harassment as "engaging in a course of vexatious comment or conduct against a worker in the workplace that is known or ought reasonably to be known to be unwelcome".

Read literally, one might think that this means that, if you do anything at all that vexes an employee knowing that it isn't welcome, it's harassment.  So if I ask an employee to complete a difficult task that I know he doesn't enjoy, or if I discipline an employee for engaging in misconduct, are these things harassment?

Of course, most lawyers know better than to read things so literally.  It seems pretty obvious that employers remain entitled to exercise certain rights...but exactly how far do those rights go?

Traditionally, harassment was the stuff of Human Rights-based claims, and had to be based upon a prohibited ground (race, age, sex, etc.), and countless claims of unfair and 'discriminatory' treatment died for absence of a connection to a prohibited ground of discrimination.  Does Bill 168 open a door to recourse for treatment that is simply unfair?  If I am your manager, and I decide that I don't like you, and so I assign you to do all the unpleasant tasks in the department and have your co-workers do all the fulfilling and interesting tasks, is that harassment?  Does it make a difference if my assignments are based not on personal emnity, but on a good faith assessment of competence?

These are nuanced questions, the likes of which we can expect to arise routinely in the jurisprudence in the not-so-distant future.  As the Board observes in Conforti, there is a risk "the Board's resources will be overwhelmed by employee complaints arising out of routine disciplinary matters".

Does the anti-reprisal section of the OHSA prohibit reprisals for making complaints?

While ultimately not deciding the point, the Board suggests that the only obligations in respect of harassment of Bill 168 are that an employer implement anti-harassment policies and programs, and that s.50 of the Act, which protects employees against reprisals for acting in compliance with the Act, seeking enforcement of the Act, or giving evidence in proceedings under the Act, does not in fact protect employees against reprisals for making a complaint under the anti-harassment policy.

The Board looks at its own historical jurisprudence (pre-Bill 168) finding that harassment wasn't remedial under the Occupational Health and Safety Act, and concludes that, if the government had intended to require employers to keep their workplaces free of harassment, it would have included a provision in the Act saying so expressly.

In other words, by the reasoning of this Board Member, an employer could implement an anti-harassment policy as legally required and then make a practice of immediately firing any employee who makes a complaint under the policy, and this would be perfectly permissible under the Act.

My Thoughts

In my respectful opinion, the obiter on the latter issue is complete and utter nonsense.  The OHSA imposes some extremely broad obligations on employers.  Many obligations are specific to certain types of physical hazards, which is likely why the OLRB has not traditionally seen harassment as coming within its scope, but many are not.  See, for example, s.25(2)(h), that an employer shall "take every precaution reasonable in the circumstances for the protection of the worker".

In the context of the Act prior to Bill 168, it isn't hard to see why harassment might not have often been seen as included:  It really wasn't designed with that sort of issue in mind.  That being said, in certain exceptional cases, a broader view was taken - for example, Arbitrator Shime's decision in the 2004 Stina grievance against the TTC found a remedy in the OHSA for harassment which caused severe emotional distress.  (And if you look through annotated versions of the Act, it looks out of place in the case list:  This employee died, that employee died, that employee lost an arm, that employee lost a leg, that employee became depressed.  Not to belittle depression - it can indeed be very debilitating - but hazards to mental health clearly aren't easily compared to hazards to physical health.)

What the Board member is forgetting is that, today, there is only one principle of statutory interpretation, which is this:  "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."

So, with harassment now having a place on the podium of the OHSA, it does not make sense to continue to read the employer's general obligations to maintain a safe working environment as not including an obligation to maintain an environment which is harassment free.  If we interpret the OHSA as it stands now to permit reprisal for complaints made under the mandatory policy, or as not imposing obligations on the employer in respect of the manner in which complaints under the policy are handled, it would completely undermine the purpose of the mandatory policy.

If this interpretation holds the day, then Bill 168 becomes essentially meaningless.  It would require employers to incur the expense of developing policies, without contributing to employee protection in any meaningful way.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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