Monday, August 27, 2012

Bill 168: Culp Case Dismissed

Update:  Earlier this month, the Culp application (which I discussed here) was dismissed.  Not surprising, given the earlier interim decision, but there's some interesting commentary.

First, let me explain that, from the decision, it appears that Culp made submissions as to why her "application for wrongful dismissal" should be allowed to continue.  (It really sounds like Culp needed/needs a lawyer.  That phrase in and of itself was probably the death knell of her s.50 reprisal application.)  She asserted that it was "unlawful" to terminate her for her actions, and went on to allege a pattern of harassing conduct.

Vice-Chair Anderson made a few observations.  First, he refused to attach any weight to the rather vague and entirely new allegations of patterns of conduct.

Secondly, he made a distinction which might be very helpful for lay readers:
"Second, I note that this is not an application or action for wrongful dismissal.  It is an application under section 50 of the Act.  Culp’s references to the employer’s actions being “illegal” are not helpful.  The issue for the Board is whether the application makes out an arguable case that there has been a breach of section 50 of the Act, not whether the employer’s actions are “illegal” in some other way.   Whether the employer’s actions are “illegal” in the sense of constituting a breach of Culp’s contract of employment giving rise to a claim for wrongful dismissal is an issue for the courts, not this Board."
The Vice-Chair is absolutely right in drawing this distinction.  It bears noting that the Board *does* have a process for adjudicating something very similar to 'just cause', and can order statutory termination pay to be provided, but that does not appear to be in question here, and is an entirely different process.  (Quite honestly, I tend to resist the characterization of 'breach of contract' as being 'illegal', anyways.  I tend to think of 'illegality' as speaking to some broader prohibition than merely something that a party has agreed not to do as a term of contract.)

Third, and most importantly for our purposes, he drew a very important distinction between 'harassment' and 'reprisal'.  The "essence" of the complaint was that she was harassed, and not that she experienced reprisal, and an application under section 50 only deals with reprisal allegations for standing on one's rights under the Act.  If one assumes that the Act prohibits harassment, that does not lead to a freestanding right to make a s.50 complaint about harassment, any more than it does for physical hazards, inadequate safety systems, etc.

Very important.  Suppose I'm concerned about exposed live wires in my workspace, which are objectively unsafe.  I can do a number of things about it, such as refusing unsafe work.  These are entitlements under the Act.  If the employer turns around and fires me for making an issue of the live wires, that will constitute reprisal.

The analogy to harassment is this:  If my employer is harassing me, I may have recourse, but not to s.50.  My employer ought to have a policy and program for making harassment complaints.  If not, I can complain to the Ministry about the lack of a policy.  But let's assume that there is a policy, and I make an appropriate complaint under the policy.  The unanswered question is:  Then what?

If the employer takes reasonable steps to investigate and deal with the complaint, then that's the ideal scenario.  But what if the employer ignores the complaint?  Or worse, starts treating me worse (up to and including termination) because I made that complaint?

The second scenario is where I argue s.50 applies.  It strains reason to imagine that the legislature would obligate employers to create a process to address complaints of harassment, and not protect employees for utilizing that process.  But it is the reprisal, not the harassment itself, which triggers the availability of the process.

The first scenario is, incidentally, far more difficult, but will not usually trigger s.50 either.  It's another door through which the Board will be able to dispose of many of these complaints.  s.50 cannot become a mechanism for second-guessing whether or not an employer's response to a harassment complaint was adequate.  (My argument would be that it should be treated as a defect in the program itself.  The statutory language requires the program to "set out how the employer will investigate and deal with incidents and complaints of workplace harassment" [my emphasis].  My argument is that, by implication, this requires an employer to actually investigate and deal with such incidents, and requires the program to reflect the reality of how the employer will do so.  I would argue that a Ministry inspector is therefore empowered to order an employer not just to create a meaningful policy and program, but also to comply with its own policy and program.)


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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