Monday, February 27, 2012

Quoted in the Law Times on Bill 168

I've made several posts critiquing the OLRB's interpretation of Bill 168.  Today's Law Times ran an article about the matter, and has quoted me in some of my criticisms.  Perhaps not the most eloquent presentations of my point, but I think the gist is carried.

My argument, in essence, is that the absence of substantive harassment obligations either in the contents of the mandatory policy or in the employer's response to a complaint under the policy completely undermines any effect the new statutory language might have.  The only thing the employer needs to do is have a policy with certain minimalistic components.  However, there's no objective standard for what the policy needs to actually do, no requirement that the employer actually follow its own policy, and no requirement that employees have meaningful access to or redress through the complaint mechanism in the policy.  So long as there's a policy there, the employer has met its harassment obligations under the Occupational Health and Safety Act, according to the OLRB, even if it proceeds to completely disregard everything related to harassment thereafter.

"Buchanan says he disagrees with the board's very literal reading of the act but acknowledges that the amendments brought about by Bill 168 give it very little to go on."

That's a fair assessment of my position.  In the actual interview with the author, I went a step further to point out that I really do understand why the Board would want to take that position:  There's a "floodgates" concern.  If you opened up the door to complaints by people for being victimized by harassment or - worse - for reprisals based on harassment, then the OLRB could conceivably be inundated by complaints of tenuous merits, often arising from legitimate discipline or other legitimate and good faith employer actions.

Though, strangely, the Board's approach at present seems to be equivocating on that concern:  Some jurisprudence says 'We don't have jurisdiction to consider these complaints at all', but most of the cases actually say 'We might not have jurisdiction, but it doesn't matter because the facts in this case don't support the allegations of harassment/reprisal.'  In other words, despite not wanting to open up the floodgates for cases of tenuous merits, they're still considering how tenuous the merits of these cases are, and in fact discovering how easy it is to filter out most of the weak cases.

There's something of a counterpoint presented in the article by lawyer Blaine Donais, noting the total absence of definition of workplace harassment, which supports the floodgates concerns.  It's a legitimate point, and calls for some more discussion.

Harassment is very broadly defined, and on a literal interpretation would indeed seem to capture just about everything unwelcome that could go on in a workplace, from discipline to the assignment of duties that are well within an individual's job description.

But are those things really workplace harassment?  Are those really the kinds of things that the legislature intended to address when building language to protect workers against workplace harassment?  Likely not.  It's a small step of legal interpretation to take "vexatious comment or conduct" to exclude such legitimate exercises of employer authority.  Legitimate discipline, fairly applied, cannot reasonably be considered harassment.  On the other hand, bad faith discipline which is intended to vex the employee is another matter. Similarly, assigning menial tasks to an individual will usually not be harassment; on the other hand, routinely picking an individual for menial tasks for no better reason than personal animosity may be different.  Shades of grey?  Absolutely.  But the arbitral jurisprudence hasn't shied away from these kinds of contextual analyses in the past (consider the 2004 Stina grievance), and in fact the suggestion isn't new that 'harassment' can offend the Act's catch-all provisions about healthy work environments.

Indeed, even on the Board's limited interpretation of the harassment provisions, it still seems unimaginable to think that the employer's policy must or should define harassment as including legitimate discipline.  Giving an employee a complaint mechanism which is properly utilized because he's being asked to show up on time would be, in most cases, a joke.

Donais' comments suggest something of a trade-off, a legislative intention to limit employer obligations in order to protect them from the floodgates.  Perhaps.  On review of the Hansard, it appears that the NDP criticized the Bill for not going far enough.  But the debate doesn't go in that direction.  There's no suggestion in the Hansard that the obligations of employers are being intentionally restricted in that sense.  Rather, while the debate really did focus more on the violence provisions of the Bill, the Minister spoke of violence and harassment almost interchangeably when discussing the Bill's broad objectives of preventing violence and harassment.

I would have preferred that the legislature set out more expressly the limits of employer obligations.  But I don't think that its failure to do so is a bar on Courts and Tribunals interpreting a wider set of obligations, particularly in light of one important fact:

This is the Occupational Health and Safety Act, which is clearly intended to protect the health and safety of workers and workplaces.  It does have catch-all provisions to that effect.  And so the remaining question is whether or not harassment endangers health and safety within the meaning of the Act.  If it does, then employers are obligated to maintain an environment free from harassment.  If it does not, then employers are not so obligated.

...but if harassment is not related to health and safety, then the Legislature would not have included harassment language in the OHSA at all.  In light of Bill 168, it is incoherent to continue to read health and safety, in general terms, as not dealing with harassment concerns.


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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