More Bill 168 Cases

As any of my regular readers know, I have closely followed the developments in the interpretation of Bill 168 by the Ontario Labour Relations Board.  Though we're now approaching two and a half years since Bill 168 took effect, there doesn't appear to be a final word on one key question:

Does a complaint of harassment under the policies and programs now mandated by the Occupational Health and Safety Act incur the protection of the anti-reprisal provisions in the Act?

In other words, if I complain in good faith that you're harassing me, and you fire me for making the complaint, have you violated the Act?

I've made plenty of posts about this before (click the "Bill 168" tag at the bottom), based on a strong belief in an affirmative answer.  I interpret the Act as now imposing a substantive obligation on employers to provide a workplace free from harassment and violence, and therefore that a harassment complaint is standing on one's rights under the Act, giving it reprisal protection.  But that isn't the answer the Board has been leaning towards, for reasons first set out in the Investia case.

Still, while in early cases the Board suggested that the answer is 'probably not', most of the case law since has been cognizant of the fact that the answer is not certain, and the Board proceeded to dismiss applications on other grounds.

The recent cases are Amodeo v. Craiglee Nursing Home Limited and McDonald v. Windmill Cabinets.

Craiglee

The employee was subject to directions from the Administrator regarding her job that she thought were unreasonable by the Administrator (and there was some question as to whether or not she had been disciplined), so she sent an email to senior management complaining of the Administrator's conduct.  She was dismissed shortly thereafter.

Vice-Chair Kelly considered the question of whether or not the Board had jurisdiction to hear the complaint, but proceeded to dismiss the Application on other grounds - namely, that the conduct complained of didn't meet the definition of workplace harassment, and the Application had to fail on that basis alone.

Now, I've noted before that the face value definition of harassment in the Act is extremely broad, but that this doesn't concern me because it just about goes without saying that legitimate exercises of employer authority (such as giving instructions or reasonable discipline) will not be captured by the language.  And I fully agree with the Board that, on the facts it has described, there doesn't appear to be much of a case that harassment occurred.

However, this decision is...concerning.  The specifics of her email to management aren't clear (i.e. whether or not she was specifically alleging harassment or raising concerns simply about the instructions themselves), nor whether or not the employer has the required policy and program, nor whether or not this email complied with such a policy.  So it's hard to extrapolate much from the decision, but...

...let me say firstly that, if the email couldn't fairly be characterized as a complaint of harassment, that would be fatal to the Application.  I've made this distinction before in my earlier posts:  The OLRB's power under s.50 of the Act gives it power to hear complaints of reprisals to, among other things, exercises of rights under the Act.  Even under my interpretation of the Act that an employer has a substantive obligation to provide an environment free from harassment, simply saying to the Board "I was harassed" isn't enough to generate a remedy.  What generates the remedy - under my argument - is mistreatment by the employer after and because of a prior complaint of harassment.  So if there was no prior complaint, there's no reprisal protection, and no case - at least, not under s.50 of the Act.

However, if one assumes that the email was a complaint of harassment, then to my mind this decision is simply wrong.  Under any anti-reprisal regime where you are protected for standing on your rights, including the Occupational Health and Safety Act, you need not prove that you were objectively correct in the first place.  If I genuinely and in good faith believe that a working condition is unsafe, then I can refuse the unsafe work.  Whether or not this refusal is protected by s.50 does not turn on whether or not the Ministry agrees with me that the conditions are unsafe.  It is not the case that, if the Ministry determines that the working conditions are acceptable, the employer is able to turn around and fire me for refusing what I had perceived as unsafe work.  The very point of these anti-reprisal provisions is that an employee can stand on his or her rights without being afraid that the employer will turn around and dismiss him or her.

Similarly, whether or not a reprisal complaint for harassment can succeed can not turn on whether or not there was harassment in the first place; simply on whether or not there was a good faith complaint of harassment.

Tilting at Windmills

Vice-Chair Wilson didn't summarize many of the facts in this case.  He alluded to an apparent disconnect between some of the conduct complained of and the applicant's dismissal, and sought more submissions, but he also referred to the Investia case as being an ostensibly binding precedent.  (Which it isn't, as has been routinely recognized by the Board.)

So, not much to speak of in this case.

The Elements

The OLRB has found a lot of reasons to dismiss cases without having to consider the question of jurisdiction.  This is kind of troubling in and of itself - if it doesn't have jurisdiction to consider the merits of these applications...why is it doing so?  Along a similar vein, it is developing a highly sophisticated and narrow test for these reprisal applications...seems like an awful waste if the Investia analysis is correct.

So I've been pondering lately what the perfect test case would look like.

(0)  Actual Harassment

As I explained above, I don't think this should be strictly necessary, but until the law on s.50 is more settled I'd be reluctant to advance a complaint where the merits of the original harassment complaint were tenuous in the first place, because of analyses like Vice-Chair Kelly's in Craiglee.  (I number this "zero" because I don't believe it's actually an element...but it wouldn't hurt, so it's something the 'perfect case' would have.)

(1)  A Complaint of Harassment in Accordance with the Policy

As a slight twist, the absence of the mandatory policy can cut the other way, making the test easier to satisfy for an applicant..  There was one case in which the Investia analysis was determined not to apply because there wasn't a policy in place, so the Board agreed to hear a complaint where the employee made a complaint of ostensible harassment, and was dismissed (because of it?), where there wasn't a harassment policy.  In other words, employers, get that policy and program in place.  But the result is that the absence of a policy and program will mean that the OLRB doesn't have to decide whether or not Bill 116 created a substantive obligation to maintain a workplace free from harassment.

So an employee who has been harassed needs to review the harassment policy and program, and make a complaint in accordance with those terms.  In the absence of a proper complaint under the prescribed policy, that will give the OLRB a preliminary out.

(2)  Reprisal by the Employer

The prohibited actions in s.50, in response to an employee enforcing rights under the Act, are dismissals or threats of dismissals; discipline, suspensions, or threats of discipline or suspensions; imposition of "any penalty"; or intimidation or coercion.

Let's be clear on something here:  Simply a failure to properly investigate or deal with the harassment will probably not get an employee there.  Saying that the 'harassment got worse' would be a very tricky case indeed.

For the clearest case, an employee will have to be able to point to something a little more quantifiable and overt, like a dismissal or formal discipline, demotions or other objectively apparent penalties, or some overt (and provable) attempt to intimidate or coerce.

(3)  A Causal Connection

Proving the causal connection can be very difficult.  An inference can be drawn from timing, but employment relationships and business needs are complicated things, and in most cases the onus is upon the applicant to establish that the negative treatment was a result, in whole or in part, of the action giving rise to reprisal protection.  Proving why an employer took a particular action is seldom an easy thing to do.

The 'perfect' case would involve a scenario where the employer expressly admitted that the termination was a result of the complaint.  It isn't implausible - most managers know better than to admit, for example, that a pregnancy motivated a termination decision, but one can certainly imagine an unsophisticated employer admitting that a more general harassment complaint prompted the termination process.  So perhaps you'll have a situation where a small to mid-size business owner has a temper, and periodically flies off into a rage and berates and swears at his employees for little or no reason.  An employee complains about the harassing conduct, and the owner responds to the effect of "If you don't like how I manage, go work somewhere else", and dismisses the employee.

In order to have a prima facie case sufficient to warrant the OLRB answering the question asked at the outset of this post, an applicant will need to have some evidentiary basis for each of points 1, 2, and 3.  Without that, an application is dead in the water.

*****

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.