Tuesday, July 17, 2012

Bill 168: The floodgates are open; where's the flood?

Still no final decision on Bill 168 harassment and reprisal.  Only one more interim decision, too.

So while this is essentially just another interim update, there are more observations to be made.

On July 10, Vice-Chair Anderson released an interim decision in Culp v. Blue Line Transportation Ltd.  The applicant in that case is claiming that, because she complained to the boss' son about being passed over for a promotion,  she was 'bullied' (through subsequent meetings and "unacceptable" treatment) into saying that she should look for another job, following which she was terminated because of her expressed job dissatisfaction.  (NB:  It does not appear to have been a 'just cause' termination.  That would ordinarily be well within an employer's rights, and not a bad employment practice at that:  My employee isn't happy with the job she's in, so I'll give her the statutory and contractual/common law notice of termination to which she is entitled and send her on her way.  I don't want to employ somebody who doesn't want to be here.)

Vice-Chair Anderson observes that there are, at a glance, three potentially-fatal problems with the application:

(1)  It isn't clear that she experienced 'harassment' within the meaning of the Act.  The "unacceptable" treatment she claims appears to have been performance-related.  (Remember my original post on this subject back on November 18?  I pointed out that the face-value definition of harassment was extremely broad, but that there would certainly be room for adjudicative interpretation, and that employer activities such as reasonable discipline would certainly not be interpreted as falling within the definition of harassment.)

(2)  To engage the anti-reprisal provisions in the Act, you need an exercise of rights, a prohibited action by the employer, and a causal nexus between the two.  In the harassment context, it has to mean "I stood on my rights against harassment, and suffered unfair treatment because I stood up for my rights."  Even if her "unacceptable" treatment constituted harassment, it isn't clear that you can get to the anti-reprisal provision on these facts.  It just doesn't seem to fit the framework, even if you assume that harassment does trigger the anti-reprisal provisions of the Act.  You'd need to read the factual allegations in a very peculiar and specific way, which don't exactly seem to mesh with the allegations.  (i.e. Being passed over for the promotion was part of a campaign of harassment by my supervisor; I complained to the boss' son about the continued harassment; I was fired as a consequence of the complaint.  That might fit.  But it looks more like My supervisor treated me unfairly; I was passed over for the promotion, which was unfair; I complained about being passed over for the promotion; and they continued to treat me unfairly, which led to me saying something that they disliked enough to get rid of me.  Much messier.)

(3)  The question remains undecided as to whether or not employer reprisals because of a complaint of harassment contravene the Act.  This is the same hedging language we've seen in all the other cases - "far from clear" that it's the case; quoting a lengthy statement from Investia; qualifying that the comments were obiter and the matter hasn't been fully decided.

The Vice-Chair invited submissions from the applicant to explain why the application shouldn't be dismissed.

So...More of the same?

Yes, it's essentially the same as all of the other decisions on this issue.  'This complaint looks like nonsense, and we're not sure that we have jurisdiction to hear it even if it isn't nonsense.'  Indeed, most of the complaints that we're seeing decided do look pretty tenuous.  People complaining about harassment after being disciplined, continuing with disciplinable conduct and getting fired, then complaining of reprisal.  People complaining of general unfair treatment.  Most of it looks like chaff.

But what's stunning is how little chaff there is.  This is the first decision considering the question since March.  So either there are a whole pile of harassment reprisal applications getting jammed in the OLRB's gears somewhere, or there are really, really few such applications.  Or potentially some unreported decisions...but the OLRB usually reports all significant decisions, and a whole stack of their insignificant ones.  They report several hundred decisions per month - often more than double what the HRTO reports, and the HRTO reports all of its decisions.  The point is that we simply aren't seeing the flood of "I've been treated unfairly" applications that the OLRB was afraid of.

Part of the rationale underlying Investia is that they don't want to reach for a broad interpretation of their powers dealing with harassment because "such an interpretation would likely significantly increase the Board's caseload".

Of course, what they're worried about isn't large numbers of people making concise legal arguments with the assistance of counsel, leading solid evidence to support a contention that they've experienced reprisal for a harassment complaint.  What they're worried about is large numbers of people who are dissatisfied with how they've been treated looking at the OLRB as being a body to appeal harassment policy decisions, with no articulable or provable reason to believe that they've experienced actual reprisal.  Chaff.  And while one could theorize that the decisions in Investia and Ludlow have dissuaded some people from making applications, the huge numbers of chaff cases they were afraid of can't be expected to go away so quickly based on a small amount of case law.

Essentially, the Investia logic is "If we have to consider the merits of whether or not these cases are worth being heard, it will create an unacceptable disruption in our process."  However, in Investia the Board proceeded to consider the merits, and the Board has proceeded to do the same in almost every case since, and I think that what we're finding is this:  It isn't that big of a deal.  The OLRB's nightmares of having to face thousands of "I've been treated unfairly" applications were unjustified fears.


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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