Guest Entry by Evan Schiller: OLRB Confirms that Employers Cannot Punish Workers for Complaining about Workplace Harassment

Evan Schiller, a worker representative from the Office of the Worker Adviser, has authored a case commentary on the OLRB's case law regarding reprisals for complaints of workplace harassment.  This is a topic that I have followed closely, and I'm pleased to present somebody else's comments about it for a change.

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OLRB confirms that employers cannot punish workers for complaining about workplace harassment

But reprisal applications based on harassment still a tough sell

By Evan Schiller

Much controversy has surrounded the question of whether the Occupational Health and Safety Act [“the OHSA”] provides enough – or, for that matter, any – protection for workers against workplace harassment. In 2010, through Bill 168, a definition of workplace harassment was added to the OHSA, with some limited rights and responsibilities associated with it. The key word, however, is “limited.”

One right that workers do have under the OHSA is protection against reprisals. Under section 50 of the OHSA, employers are prohibited from terminating, punishing, or threatening workers for exercising their health and safety rights (such as the right to refuse unsafe work). The idea is to encourage workers to report health and safety issues in the workplace without fear of reprisals.

But, given the limitations of the workplace harassment provisions, when an employer punishes a worker because they reported an incident of harassment in the workplace, has the employer committed a health and safety reprisal? In other words, does the OHSA give workers the right to complain about workplace harassment?

Until recently, the Ontario Labour Relations Board (OLRB) was divided on this question. One string of decisions suggested that Bill 168 did not go far enough to even give workers the right to complain about harassment, and, thus, any punishment imposed on a worker for doing so would not be a reprisal. This was led by Vice-Chair Brian McLean’s comments in Conforti v Investia Financial Services, 2011 CanLII 6089 [Investia]. Vice-Chair McLean’s opinion was that the Bill 168 provisions of the OHSA only require employers to develop a harassment policy and program, but not to take any actual steps to prevent harassment in the workplace. So, workers who ask to be protected from harassment are not actually exercising a right (paras. 9-20). This was, however, just an opinion, and not the final basis for his decision in that case.

Another more recent string of decisions has concluded that workers do have the right to report incidents of harassment to an employer, even if the employer ultimately decides not to do anything about it. In Ljuboja v AIM Group, 2013 CanLII 76529 [AIM Group], Vice-Chair Jesse M. Nyman agreed with Vice-Chair McLean that the OHSA does not dictate any substantive steps that employers must take to protect workers from harassment (para. 61). Nonetheless, the mandatory harassment program under the OHSA at least requires employers to allow workers to bring forward complaints, a requirement that would be meaningless if workers could simply be fired for doing so (paras. 49-53):

Accepting, as I do, that the Act requires employers to have an internal process for addressing instances and complaints of workplace harassment, it would entirely undermine that process if an employer is free to terminate a worker because he or she brought forward a complaint of workplace harassment in compliance with that process. An interpretation of the Act that finds employers are obligated to create and maintain a policy by which workers may bring forward complaints of harassment but are nevertheless free to terminate, or otherwise penalize or retaliate against, any worker for having actually made a complaint under that policy is, in my view, untenable. To interpret the Act in this manner would be to strip the employer’s obligation to have a program to implement their workplace harassment policy through which workers may make a complaint of any meaning. Surely the Legislature did not intend in subsection 32.06(2) to spell out the obligation on employers to include measures and procedures for workers to report incidents of harassment at their own peril? Surely the Legislature did not envision that, in requiring employers to describe how they will “deal with” complaints of workplace harassment in subsection 32.02(2)(b), employers would be free to terminate the complainant merely because he or she had the temerity to complain about a course of unwelcome and vexatious comment or conduct?

A new decision, Murphy v The Carpenters’ District Council of Ontario, 2014 CanLII 2304 [Murphy], released on January 23, 2014 by Vice-Chair Brian McLean himself – the man behind the Investia decision – appears to resolve this legal question once and for all. Perhaps surprisingly, Vice-Chair McLean has (reluctantly) accepted Vice-Chair Nyman’s analysis from AIM Group (para. 32):

At the time of the hearing of this matter, there had been no settlement in the Board’s jurisprudence regarding whether the making of a harassment complaint constitutes the exercise of a right under the OHSA… In [AIM Group], the Board (differently constituted) rejected the Investia reasoning and found that the making of a complaint under an employer’s harassment policy constitutes seeking the enforcement of the [OHSA]... While I have some difficulty with the reasoning in that decision, I recognize that it is within a range of possible results and in the interests of consistent decision making regarding the Board’s interpretation of the OHSA, I accept it.

This is definitely a win for workers, but one that should not be overstated. The Murphy decision merely confirms that workers have the narrow right under the OHSA to complain about workplace harassment through an employer’s harassment policy. However, as the caselaw stands, that is the only right workers have.

Every OLRB decision from both sides of the fence has concluded that the OHSA does not give workers the right to a “harassment-free workplace” (Investia at para. 15, AIM Group at para. 61). Instead, it only requires employers to develop a policy and program for harassment, but then leaves all questions of implementation and enforcement entirely up to the employer – it is an internal process. So, a worker has the legal right to complain, and not to be fired for doing so. But the way in which the employer investigates and deals with the worker’s complaint will not be second-guessed by the Ministry of Labour or the OLRB.

If a worker is unhappy with the employer’s investigation of their complaint (e.g., if they feel that the employer failed to interview relevant witnesses), the worker does not have the right to insist that the employer do so. Similarly, if the worker is unhappy with the employer’s conclusions after investigating their complaint (e.g. if the employer decides that no corrective action is necessary), the worker does not have the right to insist on some substantive result (e.g., a transfer to a new location, or discipline against the alleged harasser).

If a worker is not satisfied with their employer’s internal process, becomes vocal about it, then gets fired because they couldn’t accept how their complaint was handled, that likely would not be considered a reprisal under the OLRB’s current approach.

Furthermore, how the worker goes about complaining about harassment in the first place has been subject to considerable scrutiny from the OLRB – much more so than for workers who complain about physical hazards. In the Murphy case, Mr. Murphy emailed several complaints to a manager, making reference to his supervisor’s “daily abusive behaviour” and “bullying tactics,” and even noting that he “feels threatened,” and that it is “having… effects on my health.” However, the emails also contained lengthy descriptions that had nothing to do with harassment or health and safety, but were instead “[complaints] by a subordinate about how his supervisor was doing his job” (para. 38), which Vice-Chair McLean described as “not acceptable” in the “politics and economics of that workplace” (para. 39).

Noting that it was “incumbent on [Murphy] to raise his concerns in a clear way” and, since he had failed to do so, Vice-Chair McLean accepted the employer’s testimony that, when they received Murphy’s emails, they did not perceive them as “harassment complaints” under the OHSA (paras. 35-37), but rather as insubordination. As such, the employer’s motivation when it terminated Murphy had nothing to do with any attempt to exercise his rights under the OHSA.

The Murphy case is important because Murphy overcame the legal hurdle of proving that he had the right to complain about harassment; but, he was denied on the facts, which the OLRB construed quite narrowly when it found that what he had written was not actually a harassment complaint.

Despite the small step that the OLRB has taken towards increased protection for workers – i.e., the narrow finding that workers have the right to complain about harassment, and thus, cannot have reprisals taken against them for doing so – the fact remains that there has not yet been a single successful decision in a reprisal application based on a harassment complaint. Worker advocates still have a lot of room for argument for an increasingly “large and liberal” approach to the workplace harassment provisions in the OHSA. For now, with the AIM Group and Murphy decisions, at least the Board appears to be slowly moving in the right direction.

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About Evan Schiller

Evan Schiller was called to the Ontario bar in 2009, after completing his articles with the Ontario Ministry of Labour (MOL). Since that time, Evan has held positions such as Crown Counsel for the MOL, and Legal Counsel for the United Food & Commercial Workers union, Local 175. Currently, Evan is a Worker Representative with the Office of the Worker Adviser (OWA), assisting workers who have had reprisals taken against them for exercising their rights under the Occupational Health and Safety Act. Evan is also a musician, performing regularly in the Toronto area with his cover band, The Moonwalks.

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DDB's Commentary

Incidentally, while I largely agree with Mr. Schiller's analysis, I propose to comment briefly on his statement that "the way in which the employer investigates and deals with the complaint will not be second-guessed by the Ministry of Labour or the OLRB."

At paragraph 53 of the AIM Group decision, Vice-Chair Nyman discussed the contents of the requirement to implement a policy and program for workplace harassment:

The program must therefore be something more than just the policy and thus must be something more than merely creating and posting the policy; in my opinion it must include some active steps in carrying out the policy or giving effect to it.

Strictly speaking, most of the case law thus far deals with a specific question, in context of a specific process:  They all deal with the issue of whether or not making a harassment complaint engages the reprisal protection under s.50 of the OHSA, and accordingly whether or not the OLRB has jurisdiction to hear a s.50 application under such circumstances.

In a scenario where an employer, for example, simply ignored harassment complaints, there is no question that s.50 would not provide any relief to the employee.

However, if one supposes that Vice-Chair Nyman is correct in the passage I quoted, then the Ministry of Labour would thereby be empowered to investigate and remedy an employer's failure and refusal to comply with its own policy.  (I don't know if the Ministry is yet taking a position on the point, and whether or not the Ministry can be compelled to act is an entirely different can of worms.)

Also, I would highlight that even that is a procedural right, which would require the employer to act in accordance with its policy, without guaranteeing any particular outcome.

Beyond that, I will say that I agree with Mr. Schiller's overall conclusions - AIM Group was a positive first step, if a small one.  (As a lawyer who acts for both employers and employees, I can say that I see practical and legal advantages even to my employer clients of the statutory reprisal protection - the fact that employees have a protected right to make a complaint may entitle employers to expect employees to exercise that right prior to taking other steps.)  But I continue to argue, against the established jurisprudence, that it is no longer possible to read the Occupational Health and Safety Act as omitting recognition of the threat to health and safety posed by harassment, which would imply that the employer has some substantive obligations relating to the prevention of workplace harassment.

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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.