I expressed some doubts about this analysis:
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.
Ms. Amodeo then hired counsel, who sought reconsideration on a series of grounds. (Hiring a lawyer is prudent, but hiring it after the decision has been made...kind of ties the lawyer's hands.)
The reconsideration request appears to have raised a similar concern to the one I raised, arguing that Vice-Chair Kelly improperly focused on whether or not harassment occurred, rather than whether or not there was reprisal to a complaint of harassment. In fact, there's a reason that the decision was vague on the specifics of the email to management: Neither party had provided it to the Board. So the Vice-Chair, after receiving the reconsideration request, asked the parties for a copy.
In February 2013, Vice-Chair Kelly released a reconsideration decision, acknowledging the error I highlighted earlier, but, upon review of the correspondence argued to be a complaint, found that there was nothing in it to engage the anti-reprisal mechanism, nothing to put the employer on notice that rights under the Act might be engaged, nothing that could "reasonably be interpreted as having raised a complaint of harassment or any other health and safety concern." Accordingly, the reconsideration request was dismissed.
It's a good analysis, and it could be very important if the OLRB eventually does decide that a complaint of harassment triggers the anti-reprisal provisions of the Act. The statutory definition of harassment is incredibly broad, and so the subjectivity of traditional anti-reprisal analyses (i.e. that they're engaged if you stand on good faith, albeit incorrect, beliefs as to your rights) leaves a significant concern, that just about any complaint could retroactively be cast as being a complaint of 'unwelcome conduct or comment', and therefore trigger reprisal protection, even though nobody was really thinking 'harassment' at the time. And that just can't be right.
No, the Vice-Chair has it right this time: There needs to be something in the complaint itself that references the Act, or references harassment, or engages a reasonable understanding of harassment.
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