Thursday, January 26, 2012

Bill 168 Reprisals: What if there isn't a harassment policy?

I've made several posts in the last couple of months about the interpretations of Bill 168 that are starting to flow from the OLRB.  The question:  Now that an employer has to have a policy in place for dealing with reprisals, does the anti-reprisal clause in the Occupational Health and Safety Act cover reprisals suffered as a result of making a harassment complaint?

Here's a brief summary of the cases I've looked at so far:

Conforti v. Investia, September 23 2011 (my commentary here):  Vice-Chair McLean holds that s.50 (the anti-reprisal clause) probably doesn't give the Board jurisdiction to hear matters arising from reprisals for harassment complaints, and only would apply to reprisals for an employee asking an employer to implement a harassment policy pursuant to its obligations.  However, it isn't necessary to decide the point because the facts don't support reprisal allegations anyways.

Harper v. Ludlow, November 18 2011 (my commentary here):  Vice-Chair Serena reviews the reasoning in Conforti and concludes that Vice-Chair McLean was absolutely right, and the Board has no jurisdiction over reprisals for harassment complaints.

Walters v. PPL, January 4 2012 (my commentary here):  Vice-Chair Kelly notes the Conforti and Harper decisions, but declines to address the question of jurisdiction because he doesn't accept that there was reprisal anyways.

I was quite critical of the reasoning in Harper and Conforti, arguing that the amendments that Bill 168 made to the Occupational Health and Safety Act should inform our understanding of what constitutes a healthy and safe work environment, and that harassment should be seen as compromising health and safety.  To apply the strict reading of the amendments as set out in those decisions would be to render the harassment provisions of Bill 168 essentially meaningless - form without substance.  The employer would be obligated to implement a policy, but there would be no requirement for the employer to actually abide by its own policy.  (Indeed, there would be no substantive requirements of the policy itself.  Under that interpretation, an employer would comply with the legal requirements by implementing a policy that encourages harassment and creates a complaint mechanism that involves writing down the complaint on a piece of paper and immediately throwing the paper into the shredder.)

Upon reading Walters, however, I took Vice-Chair Kelly as saying that he doesn't necessarily consider the question closed, and that it is possible that, under the right facts, the Board might yet come to a conclusion which breaks from the reasoning in Conforti.

There are other decisions to look at, as well.

In Murphy v. Carpenters (December 23, 2011), the Respondent was seeking reconsideration of a decision not to dismiss the application for failing to disclose a prima facie case.  The original decision was made after Conforti but before Harper, and dealt with a similar allegation of reprisal.  The Respondent felt that the reasoning in Conforti (which the Respondent felt may not have come to the attention of the Vice-Chair, Caroline Rowan) and Harper should lead to a dismissal of this case.

Vice-Chair Rowan noted that she had reviewed Conforti prior to making the original decision, and so Harper didn't change anything.  She distinguished this case on the facts:  Murphy's allegations are that the employer did not have the required harassment policy and that he "sought management's assistance in dealing with his immediate supervisor's conduct", and that he was fired as a consequence.  After being fired, he contacted the Ministry of Labour, and the employer was subsequently ordered to implement a harassment policy.

Vice-Chair Rowan isn't expressly saying that s.50 does protect employees in positions such as Murphy (provided that he can prove his allegations), but she is clearly saying that it might.

This debate clearly isn't closed.

Other cases on the topic include Stainton v. Springdale Country Manor, in which case Vice-Chair Ian Anderson noted that it is "far from clear" that complaining about harassment is protected by s.50 (referencing Conforti), but he ultimately decided the case on the basis that no actions were alleged of the employer which could have been considered reprisals under the Act anyways.

In three other cases, Vice-Chair Anderson has sought submissions from the parties as to whether or not applications should be dismissed on the basis of the reasoning in Conforti.


The one thing that is very clear is that employers are obligated to implement harassment policies.  Many employers are still not compliant, and it is important that they correct this as soon as possible.  Murphy simply highlights that need:  It's still too early to tell where the law will lie when the dust settles, but Murphy suggests that having a policy at the outset could make a critical difference if an employee comes back alleging reprisal.


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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