Bill 168 - Reprisals Update

Many of my entries seem to be very timely.  On November 18th, 2011, I made an entry about the OLRB's decision in Conforti v. Investia Financial Services Inc., in which the Board suggested that the anti-reprisal clause in the Occupational Health and Safety Act may not apply to reprisals against employees who make complaints under the harassment policies which the Act requires employers to implement, since Bill 168 became law last year.

The Harper v. Ludlow Technical Products Canada Ltd. case was decided on November 18th, as well, in which Vice-Chair Susan Serena dealt with the question head on.  Nearly her entire reasons are an excerpt from Conforti, and she concluded:

the Board does not have the jurisdiction under either section 50 or Part 111.0.1 of the OHSA over a complaint that alleges the company did not comply with its workplace harassment policy and/or the applicant was subjected to a reprisal after she filed a workplace harassment complaint

That being decided, let's look at some of the finer points of the interpretation.  In the excerpt from Conforti, we find the Board concluding that the Act does not require an employer to keep the workplace free of harassment, nor does it require any particular response to harassment complaints.  The Act only requires the implementation of a policy regarding harassment, and a program explaining to workers how to make complaints of harassment and detailing how the employer will respond.  Only the absence of the policy and program would constitute a violation of the Act, so only an employee complaining about the complete absence of a policy gets protection by the anti-reprisal provisions.  Complaining about deficiencies in the policy does not get protection against reprisals, because the Act doesn't have minimum requirements for the contents of the policy.  Complaining about how the employer responded to the policy doesn't get protection against reprisals, because the Act doesn't dictate how the employer has to respond.  And even a complaint under the policy does not get anti-reprisal protection, because the language of the anti-reprisal provision deals with employees seeking enforcement of the Act, and the absence of a statutory requirement that employers actually address harassment means that complaining about harassment isn't seeking enforcement of the Act.

One can understand why the OLRB would not want to get caught up in assessing the merits of a policy, whether or not an employer has complied with its policy, nor whether or not the employer's response amounts to 'reprisal'.  Let's face it, 'harassment' is a pretty amorphous concept, even as defined in the Act, and there would be large numbers of cases with large grey areas if the Board suddenly opened up its doors to anyone who felt harassed.  Even on the anti-reprisal side, it's easy to see a huge number of fights over whether or not an action was 'harassment' or 'reasonable discipline', and then whether or not the subsequent termination was a reprisal for a harassment complaint or the response to additional disciplinary conduct.  (Not all discipline leads to termination, but most 'for cause' terminations follow a series of disciplinary events.  If there's a fight over whether not an earlier one is 'harassment', then we get into an anti-reprisal fight too.)

But when the OLRB is framing this as a jurisdictional limitation, it is speaking in absolutes.  If the Act doesn't set any standards and doesn't give them jurisdiction to even inquire into such cases, then the inevitable conclusion is that it doesn't matter how obviously defective or inappropriate a harassment policy is, or how ridiculous an employer's response is to a complaint under the policy - so long as there is a policy, the employer is in compliance.

Here's an argument from absurdity:  Imagine that I am an employer, and I implement a harassment policy saying that I encourage harassment to toughen up everyone in the workplace.  The program says that people who feel that they are victims of harassment should suck it up, but if they really want to complain about it, they can come to me with the complaint and I will interrogate them thoroughly about it and ensure that they are put on the most menial duties imaginable for a period of time to be determined.  And in practical terms, I decide I'll fire anyone who complains about harassment.

On the OLRB's strict reading of the harassment language, my obligations are to "prepare a policy with respect to workplace harassment" (check), and to implement a program to implement the policy which includes "measures and procedures for workers to report incidents of workplace harassment" (check) and "set out how the employer will investigate..." (check) "...and deal with incidents and complaints of workplace harassment" (check).  According to the OLRB, all my obligations are satisfied, and they can't do anything about my patently absurd policy.  Even if an employee comes to me and tells me in good faith that they don't think that the policy is good enough, I can fire them for that too under the OLRB's interpretation.

There are countless problems with this approach.  The first and most obvious is that it completely defeats the purpose of the harassment provisions in Bill 168.  The second is that, while you might think that the words "with respect to workplace harassment" are pretty broad, the plain language of the provisions in their totality makes it clear that there are additional obligations.  The program has to set out "how the employer will investigate and deal with incidents and complaints of workplace harassment."  If I have to create a program saying how I will do something, it doesn't make sense to suggest that I don't actually have to do it.  So implied in that obligation is an obligation to "investigate" and to "deal with" harassment complaints.  And it is patently absurd to think that these obligations are completely devoid of some contents, at least to the extent that the investigation should be one that is carried out in good faith and that "deal with" requires a good faith attempt to resolve the issues.

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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.