Between a Rock and a Hard Place

There's an interesting recent case from the Superior Court, Barton v. Rona Ontario Inc., involving a dismissed manager who was fired for just cause after compromising safety in favour of human rights.

The Facts

Barton was an assistant store manager at Rona's Barrie location, responsible for managing 140 employees.

In April 2009, a training program was scheduled in the store's training centre, and one of the employees, Kai Malmstrom, wanted to take the course.  Management wanted him to take the course, too.  The one problem was...well, physics.  Malmstrom was confined to a wheelchair, and the training centre was on the upper level of the store, and not wheelchair accessible.  The official plan was that, after the training session on April 17th, one of the attendees to the training session would provide training to Malmstrom on the ground floor.

Malmstrom wasn't happy with this.  He wanted to join his colleagues on the second floor, and take the training directly.

So Malmstrom and his colleague Mr. Stirk, came up with a plan to get Malmstrom upstairs using an order picker.  The essentials of the plan involved strapping Malmstrom's wheelchair to a skid and lifting him up to the second floor, and bringing him back down the same way.  On the evening before the training session, Malmstrom suggested this plan to Barton.  Barton, at the time, was in the middle of coordinating a major event in the store, and while he did not expressly permit the plan, he failed to expressly prohibit them from carrying out their plan before he was called away.  The evidence on the conversation was conflicting - the trial judge accepted that Barton reminded Malmstrom of the plan to have him trained later, but also accepted Malmstrom's evidence that Barton seemed agreeable to the plan, despite Barton's evidence that he tried to express his discomfort with the idea.

The next morning, as they began to carry out their plan, the Operations Manager, Clint Marsh, asked them what they were doing, and his evidence was that he prohibited them from doing so.  Then he was called away, and they continued nonetheless.

The plan proceeded essentially without incident, except that Stirk wasn't wearing the appropriate safety equipment when bringing Malmstrom back down.  Nobody was injured.  Nonetheless, it was an egregious safety violation.

Gierak, a Human Resources Advisor, conducted an internal investigation into the incident, and there were significant excerpts from her notes reproduced in the decision.  Both Marsh and Barton acknowledged they would have done things differently if given another chance - i.e. they would have stopped it (which is strange to me, given Marsh's evidence that he instructed them not to proceed).  They also noted that, had they not been confident that it would proceed safely, they would have stopped it.

It appears that, given Malmstrom's impression that Barton was okay with the plan, he left Stirk with the impression that Barton had given permission, who conveyed that same impression to Marsh.

Gierak's report did not recommend termination.  Up until her discovery that Stirk had foregone the appropriate safety equipment herself, she wasn't sure that there even was a safety violation, and felt that everyone's actions to get Malmstrom to the training session were, while perhaps ill-advised, understandable.

Nonetheless, following a second investigation by a second HR professional, management terminated Stirk and Barton for cause, and disciplined Marsh.  There is no indication in the decision as to whether or not Malmstrom was disciplined, nor any of the others involved.  (Apparently, several people assisted in the process of getting Malmstrom upstairs.)

The Decision

The question in this case was whether or not Barton's failure to stop the lift constituted just cause for termination.

Rona has very clear policies regarding safety protocols, including that immediate dismissal may be called for in specific cases of safety breaches, including deliberate acts that could endanger safety, riding on moving equipment, and deliberate violation of safety rules.

Furthermore, the Court accepted the proposition that managers are held to a higher standard than non-managerial employees.

The judge is not at all critical of Rona's decision to terminate Barton.  There were many 'good and valid' business reasons to terminate an employee in that context.  "In this case, for example, Rona might have formed the view that Mr. Barton lacked the character required of a senior management person and did not want him back.  Rona could have decided that, given the large number of store staff who witnessed the event and assisted in the lift and the descent, it was necessary to make an example of him...."

However, these reasons do not necessarily "pass muster as just cause".  The Court rightly notes that its assessment is simply whether or not the misconduct in and of itself justifies termination.  In this case, there is no reason to suggest that discipline would have been inadequate to preserve the relationship as between Rona and Barton.  No reason to think that a stern warning would have been insufficient to prevent Barton from engaging in such misconduct again.  His specific acts were not so egregious as to warrant termination, and progressive discipline would have been appropriate.

My Thoughts

This is a close case in some ways, but I believe the Court got it exactly right.  All Barton did was fail to prohibit a plan brought to his attention in a brief conversation during which he was otherwise occupied, and which was carried out the next morning before he arrived at work.

He probably should have said "Don't do it", and it's probably culpable misconduct that, as a manager, he failed to do so.  But just cause is a high threshold.  And it's interesting that Rona rolled the dice on this one, because it just so happens that the lawyer who represented Rona was one of the instructors for my law school employment law class, back in the day, where I was taught how high a threshold just cause is.  (I recall one of the instructors relating an anecdote from Court where a judge queried whether or not just cause still exists at all.)

One of the things which really surprises me about this decision, though, is how little discourse there was on the human rights aspects of the case.  The parties were clearly aware that the incident was simply an effort to get Malmstrom access to the training facility, and Barton himself was of the view that some blame lay with the lack of accessibility in the store.

It's hard to fault Malmstrom for wanting to attend the seminar in person.  Getting instruction from somebody who happened to attend the seminar is hardly a substitute for having gotten professional instruction in a structured classroom.  It seems like a discriminatory result.

Suppose, for a moment, that the lift could have been and was completed in a way that reasonably controlled for all risks involved.  (Even though not all safety protocols were observed during the descent, that's hardly Barton's fault:  He wasn't even there at the time, and even had he given express permission one would reasonably infer that it was subject to ordinary safety protocols being observed.)  A Rona safety policy saying "Don't do it" might not be sufficient to justify rejecting the plan; you would have to carefully and contextually examine the risks, figure out why the particular policy is in place and whether or not the risks it seeks to avoid can otherwise be accounted for.  We don't know what Rona's human rights policy says, but there's a good chance that it is also disciplinable for managers to engage in discrimination.

And also suppose that Barton hasn't memorized all such policies.  This is a fair supposition, I think.  Given an opportunity to review the safety policies and the human rights policies, and the specifics of the request being made, there may have been a right answer and a wrong answer within the context of Rona policy, but in the absence of such an opportunity to review, we're looking at two answers which could be wrong.  This is not a scenario where you can necessarily err on the side of caution, because there is no cautious approach.

Barton doesn't want to refuse the request, because he sees it as his responsibility (and Rona's responsibility) to accommodate Malmstrom.  He may be wrong.  It may be that the plan was inherently unsafe in such a way as to justify refusal, and it may also be that creating an access route or a ground floor training facility would amount to 'undue hardship', which would mean that Malmstrom would have no legal right to be so accommodated.  But this is a complex and nuanced human rights question, which lawyers could certainly and reasonably disagree about.

At minimum, this mitigates the severity of his failure to instruct Malmstrom not to carry out the plan.  We know that he was busy with other matters, he wasn't able to complete the conversation, and he didn't have an opportunity to return to the matter to finish dealing with it.  That he could reasonably and in good faith believe that his decision was to protect Malmstrom's human rights makes it difficult to argue that the decision, even if wrong, could be such misconduct as to warrant summary dismissal for cause.

But it's more than that:  Refusing to discriminate against somebody is a protected act under the Human Rights Code.  The law on this point is not particularly well-settled either - it is reasonably clear that a good faith complaint of discrimination will give rise to reprisal protection, even if the original complaint was not founded.  Imagine, for example, that I was denied a promotion, and I felt in good faith and reasonably that the denial was due to my religion, and I made a complaint accordingly, and was fired for it.  Even if I cannot prove the actual discrimination (and indeed, even if the denial of the promotion could be shown to not be discriminatory at all), the termination would still likely be an unlawful reprisal.  It is not so clear that the same principle applies to people refusing to breach another's Code rights, but it's arguable.  So if refusing to allow Malmstrom to attend the seminar would be unlawful discrimination (which could be argued), then not prohibiting him from doing so would likely be Code-protected.  Alternatively, even if it wasn't unlawful discrimination, the failure to prohibit him from doing so based on the good faith belief that Malmstrom was entitled to accommodation might still be Code-protected.

Highlights

I'm pretty sympathetic to Barton, but that sympathy arises from several places, and I wouldn't want to be taken as suggesting any sort of general proposition that safety ought to be compromised in favour of human rights.

Firstly, he wasn't there.  He discussed the matter the night before in what sounds like a fairly cursory manner, and didn't prohibit it.  That amounts to, at best, lukewarm complicity.

Secondly, not being there, he can hardly be faulted for the fact that not all safety precautions were taken.  He was dealing with people well-qualified and trained in the use of the equipment, and ought reasonably to have presumed that these folks would take all safety precautions.

Thirdly, nobody was injured.  Had there been injuries, that could be a whole different matter.

Fourthly, it was Malmstrom's idea in the first place.  Inherently unsafe, perhaps, but most of the risk was to Malmstrom, and he would have been aware of such risks.  (If it was the employer's idea, pressuring Malmstrom to engage in something unsafe as an alternative to reasonable accommodation, it could be a very serious problem under both the Human Rights Code and the Occupational Health & Safety Act.)

Fifthly, it was necessitated by an unfortunate absence of accessibility, which means that the employer probably has to shoulder at least some of the blame, and can't just point fingers at Barton.

In general, I'm inclined to believe that Barton was probably wrong, but not even at the longest stretch could I imagine this constituting just cause.

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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.

Bill 168 Reprisals: What if there isn't a harassment policy?

I've made several posts in the last couple of months about the interpretations of Bill 168 that are starting to flow from the OLRB.  The question:  Now that an employer has to have a policy in place for dealing with reprisals, does the anti-reprisal clause in the Occupational Health and Safety Act cover reprisals suffered as a result of making a harassment complaint?

Here's a brief summary of the cases I've looked at so far:

Conforti v. Investia, September 23 2011 (my commentary here):  Vice-Chair McLean holds that s.50 (the anti-reprisal clause) probably doesn't give the Board jurisdiction to hear matters arising from reprisals for harassment complaints, and only would apply to reprisals for an employee asking an employer to implement a harassment policy pursuant to its obligations.  However, it isn't necessary to decide the point because the facts don't support reprisal allegations anyways.

Harper v. Ludlow, November 18 2011 (my commentary here):  Vice-Chair Serena reviews the reasoning in Conforti and concludes that Vice-Chair McLean was absolutely right, and the Board has no jurisdiction over reprisals for harassment complaints.

Walters v. PPL, January 4 2012 (my commentary here):  Vice-Chair Kelly notes the Conforti and Harper decisions, but declines to address the question of jurisdiction because he doesn't accept that there was reprisal anyways.

I was quite critical of the reasoning in Harper and Conforti, arguing that the amendments that Bill 168 made to the Occupational Health and Safety Act should inform our understanding of what constitutes a healthy and safe work environment, and that harassment should be seen as compromising health and safety.  To apply the strict reading of the amendments as set out in those decisions would be to render the harassment provisions of Bill 168 essentially meaningless - form without substance.  The employer would be obligated to implement a policy, but there would be no requirement for the employer to actually abide by its own policy.  (Indeed, there would be no substantive requirements of the policy itself.  Under that interpretation, an employer would comply with the legal requirements by implementing a policy that encourages harassment and creates a complaint mechanism that involves writing down the complaint on a piece of paper and immediately throwing the paper into the shredder.)

Upon reading Walters, however, I took Vice-Chair Kelly as saying that he doesn't necessarily consider the question closed, and that it is possible that, under the right facts, the Board might yet come to a conclusion which breaks from the reasoning in Conforti.

There are other decisions to look at, as well.

In Murphy v. Carpenters (December 23, 2011), the Respondent was seeking reconsideration of a decision not to dismiss the application for failing to disclose a prima facie case.  The original decision was made after Conforti but before Harper, and dealt with a similar allegation of reprisal.  The Respondent felt that the reasoning in Conforti (which the Respondent felt may not have come to the attention of the Vice-Chair, Caroline Rowan) and Harper should lead to a dismissal of this case.

Vice-Chair Rowan noted that she had reviewed Conforti prior to making the original decision, and so Harper didn't change anything.  She distinguished this case on the facts:  Murphy's allegations are that the employer did not have the required harassment policy and that he "sought management's assistance in dealing with his immediate supervisor's conduct", and that he was fired as a consequence.  After being fired, he contacted the Ministry of Labour, and the employer was subsequently ordered to implement a harassment policy.

Vice-Chair Rowan isn't expressly saying that s.50 does protect employees in positions such as Murphy (provided that he can prove his allegations), but she is clearly saying that it might.

This debate clearly isn't closed.

Other cases on the topic include Stainton v. Springdale Country Manor, in which case Vice-Chair Ian Anderson noted that it is "far from clear" that complaining about harassment is protected by s.50 (referencing Conforti), but he ultimately decided the case on the basis that no actions were alleged of the employer which could have been considered reprisals under the Act anyways.

In three other cases, Vice-Chair Anderson has sought submissions from the parties as to whether or not applications should be dismissed on the basis of the reasoning in Conforti.

Consequences

The one thing that is very clear is that employers are obligated to implement harassment policies.  Many employers are still not compliant, and it is important that they correct this as soon as possible.  Murphy simply highlights that need:  It's still too early to tell where the law will lie when the dust settles, but Murphy suggests that having a policy at the outset could make a critical difference if an employee comes back alleging reprisal.

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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.

Bill 168 Reprisals - A Door Still Open?

Last week, the Ontario Labour Relations Board released its decision in Walters v. PPL Aquatic, Fitness and Spa Group Inc., in which Mr. Walters alleged that he was fired as a reprisal for making a complaint of harassment.

I twice posted about this issue in November (links here and here), after similar complaints were dismissed.  In the first one, Conforti, Vice-Chair McLean found that there was no reprisal, but suggested that he did not believe that the OLRB has jurisdiction over such complaints, in any event:  The amendments to the Occupational Health and Safety Act require an employer to implement a harassment policy, but does not actually impose substantive obligations on the employer regarding accepting or dealing with complaints, and therefore a complaint is not protected against reprisals under the Act.

My second post followed the Harper decision, in which Vice-Chair Serena disposed of the case directly on the basis of Vice-Chair McLean's reasoning in Conforti:  The OLRB does not have jurisdiction.

Thus, I concluded that, until and unless the Divisional Court weighs in on this issue, the Board will stand by the decision in Harper.

In Walters, however, Vice-Chair Patrick Kelly implies that the matter may not be completely settled law, and declines to address the question because he finds as a matter of fact that there was no reprisal in the first place.

The Board has recently dealt with workplace harassment complaints under the new statutory provisions.  In the first case, the Board opined in obiter that it has no jurisdiction over an alleged reprisal for having complained of harassment.[1] More recently, the Board, relying upon the obiter from the Investia decision, determined categorically that it lacks that jurisdiction.[2]  In my view, it is unnecessary to decide the issue of jurisdiction in this case.  That is because, on a balance of probabilities, I conclude that PPL did not make any reprisal against Mr. Walters as a result of his having complained about harassment, or for any other unlawful reason.

He proceeds to make several findings of fact, including that Mr. Walters was fired (PPL had taken the position that he had resigned), which may be binding on the parties in subsequent proceedings.

This is all very strange.  The Board says that it does not need to decide whether or not it has jurisdiction, because on the facts the case the application must be dismissed anyways.  Of course, if the Board does not have jurisdiction, then where does its authority to make factual determinations originate?  Perhaps more importantly, McLean's logic in Conforti in large part turned on a floodgates argument, that the Board does not want to have to closely examine the facts in situations where the employee has alleged harassment and - for whatever reason - the relationship has continued to deteriorate afterwards.  Yet, in this case, instead of simply referring to Harper and Conforti and declining jurisdiction, the Board conducts a full assessment of the facts in order to avoid having to reach a conclusion on jurisdiction.

It is not uncommon for an adjudicator, faced with two questions, to look at the easy one first and the hard one only if it's still necessary.  This approach does not necessarily work well in theory where jurisdictional issues are involved, and so its use here definitely suggests that Vice-Chair Kelly regards the jurisdictional issue as a hard question.

So the very interesting question becomes this:  If Vice-Chair Kelly had, in fact, concluded that the dismissal was a reprisal, which way would he have come down on the jurisdictional issue?

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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.

Bill 168 - Reprisals Update

Many of my entries seem to be very timely.  On November 18th, 2011, I made an entry about the OLRB's decision in Conforti v. Investia Financial Services Inc., in which the Board suggested that the anti-reprisal clause in the Occupational Health and Safety Act may not apply to reprisals against employees who make complaints under the harassment policies which the Act requires employers to implement, since Bill 168 became law last year.

The Harper v. Ludlow Technical Products Canada Ltd. case was decided on November 18th, as well, in which Vice-Chair Susan Serena dealt with the question head on.  Nearly her entire reasons are an excerpt from Conforti, and she concluded:

the Board does not have the jurisdiction under either section 50 or Part 111.0.1 of the OHSA over a complaint that alleges the company did not comply with its workplace harassment policy and/or the applicant was subjected to a reprisal after she filed a workplace harassment complaint

That being decided, let's look at some of the finer points of the interpretation.  In the excerpt from Conforti, we find the Board concluding that the Act does not require an employer to keep the workplace free of harassment, nor does it require any particular response to harassment complaints.  The Act only requires the implementation of a policy regarding harassment, and a program explaining to workers how to make complaints of harassment and detailing how the employer will respond.  Only the absence of the policy and program would constitute a violation of the Act, so only an employee complaining about the complete absence of a policy gets protection by the anti-reprisal provisions.  Complaining about deficiencies in the policy does not get protection against reprisals, because the Act doesn't have minimum requirements for the contents of the policy.  Complaining about how the employer responded to the policy doesn't get protection against reprisals, because the Act doesn't dictate how the employer has to respond.  And even a complaint under the policy does not get anti-reprisal protection, because the language of the anti-reprisal provision deals with employees seeking enforcement of the Act, and the absence of a statutory requirement that employers actually address harassment means that complaining about harassment isn't seeking enforcement of the Act.

One can understand why the OLRB would not want to get caught up in assessing the merits of a policy, whether or not an employer has complied with its policy, nor whether or not the employer's response amounts to 'reprisal'.  Let's face it, 'harassment' is a pretty amorphous concept, even as defined in the Act, and there would be large numbers of cases with large grey areas if the Board suddenly opened up its doors to anyone who felt harassed.  Even on the anti-reprisal side, it's easy to see a huge number of fights over whether or not an action was 'harassment' or 'reasonable discipline', and then whether or not the subsequent termination was a reprisal for a harassment complaint or the response to additional disciplinary conduct.  (Not all discipline leads to termination, but most 'for cause' terminations follow a series of disciplinary events.  If there's a fight over whether not an earlier one is 'harassment', then we get into an anti-reprisal fight too.)

But when the OLRB is framing this as a jurisdictional limitation, it is speaking in absolutes.  If the Act doesn't set any standards and doesn't give them jurisdiction to even inquire into such cases, then the inevitable conclusion is that it doesn't matter how obviously defective or inappropriate a harassment policy is, or how ridiculous an employer's response is to a complaint under the policy - so long as there is a policy, the employer is in compliance.

Here's an argument from absurdity:  Imagine that I am an employer, and I implement a harassment policy saying that I encourage harassment to toughen up everyone in the workplace.  The program says that people who feel that they are victims of harassment should suck it up, but if they really want to complain about it, they can come to me with the complaint and I will interrogate them thoroughly about it and ensure that they are put on the most menial duties imaginable for a period of time to be determined.  And in practical terms, I decide I'll fire anyone who complains about harassment.

On the OLRB's strict reading of the harassment language, my obligations are to "prepare a policy with respect to workplace harassment" (check), and to implement a program to implement the policy which includes "measures and procedures for workers to report incidents of workplace harassment" (check) and "set out how the employer will investigate..." (check) "...and deal with incidents and complaints of workplace harassment" (check).  According to the OLRB, all my obligations are satisfied, and they can't do anything about my patently absurd policy.  Even if an employee comes to me and tells me in good faith that they don't think that the policy is good enough, I can fire them for that too under the OLRB's interpretation.

There are countless problems with this approach.  The first and most obvious is that it completely defeats the purpose of the harassment provisions in Bill 168.  The second is that, while you might think that the words "with respect to workplace harassment" are pretty broad, the plain language of the provisions in their totality makes it clear that there are additional obligations.  The program has to set out "how the employer will investigate and deal with incidents and complaints of workplace harassment."  If I have to create a program saying how I will do something, it doesn't make sense to suggest that I don't actually have to do it.  So implied in that obligation is an obligation to "investigate" and to "deal with" harassment complaints.  And it is patently absurd to think that these obligations are completely devoid of some contents, at least to the extent that the investigation should be one that is carried out in good faith and that "deal with" requires a good faith attempt to resolve the issues.

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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.

Bill 168: Harassment Complaints and Reprisals

I came across an interesting case today, a recent decision by the Ontario Labour Relations Board in Conforti v. Investia Financial Services Inc.  Two issues arise: What does "harassment" mean, and what are the limits of an employee's rights following the implementation of Bill 168?

The Facts


Put briefly, Mr. Conforti was disciplined for emails which were "less than professional, specifically belligerent and derogatory in nature".  The emails are reproduced in the decision, and, as the Board observes, this characterization was "undoubtedly accurate".  He was advised that further such communications would result in the termination of his employment.

He then sent an email back a few days later, alleging harassment, in a tone which remained disrespectful, and was fired two days later.  He applied to the OLRB for recourse based on reprisal.

What does "harassment" mean?

The Occupational Health and Safety Act now defines workplace harassment as "engaging in a course of vexatious comment or conduct against a worker in the workplace that is known or ought reasonably to be known to be unwelcome".

Read literally, one might think that this means that, if you do anything at all that vexes an employee knowing that it isn't welcome, it's harassment.  So if I ask an employee to complete a difficult task that I know he doesn't enjoy, or if I discipline an employee for engaging in misconduct, are these things harassment?

Of course, most lawyers know better than to read things so literally.  It seems pretty obvious that employers remain entitled to exercise certain rights...but exactly how far do those rights go?

Traditionally, harassment was the stuff of Human Rights-based claims, and had to be based upon a prohibited ground (race, age, sex, etc.), and countless claims of unfair and 'discriminatory' treatment died for absence of a connection to a prohibited ground of discrimination.  Does Bill 168 open a door to recourse for treatment that is simply unfair?  If I am your manager, and I decide that I don't like you, and so I assign you to do all the unpleasant tasks in the department and have your co-workers do all the fulfilling and interesting tasks, is that harassment?  Does it make a difference if my assignments are based not on personal emnity, but on a good faith assessment of competence?

These are nuanced questions, the likes of which we can expect to arise routinely in the jurisprudence in the not-so-distant future.  As the Board observes in Conforti, there is a risk "the Board's resources will be overwhelmed by employee complaints arising out of routine disciplinary matters".

Does the anti-reprisal section of the OHSA prohibit reprisals for making complaints?


While ultimately not deciding the point, the Board suggests that the only obligations in respect of harassment of Bill 168 are that an employer implement anti-harassment policies and programs, and that s.50 of the Act, which protects employees against reprisals for acting in compliance with the Act, seeking enforcement of the Act, or giving evidence in proceedings under the Act, does not in fact protect employees against reprisals for making a complaint under the anti-harassment policy.

The Board looks at its own historical jurisprudence (pre-Bill 168) finding that harassment wasn't remedial under the Occupational Health and Safety Act, and concludes that, if the government had intended to require employers to keep their workplaces free of harassment, it would have included a provision in the Act saying so expressly.

In other words, by the reasoning of this Board Member, an employer could implement an anti-harassment policy as legally required and then make a practice of immediately firing any employee who makes a complaint under the policy, and this would be perfectly permissible under the Act.

My Thoughts

In my respectful opinion, the obiter on the latter issue is complete and utter nonsense.  The OHSA imposes some extremely broad obligations on employers.  Many obligations are specific to certain types of physical hazards, which is likely why the OLRB has not traditionally seen harassment as coming within its scope, but many are not.  See, for example, s.25(2)(h), that an employer shall "take every precaution reasonable in the circumstances for the protection of the worker".

In the context of the Act prior to Bill 168, it isn't hard to see why harassment might not have often been seen as included:  It really wasn't designed with that sort of issue in mind.  That being said, in certain exceptional cases, a broader view was taken - for example, Arbitrator Shime's decision in the 2004 Stina grievance against the TTC found a remedy in the OHSA for harassment which caused severe emotional distress.  (And if you look through annotated versions of the Act, it looks out of place in the case list:  This employee died, that employee died, that employee lost an arm, that employee lost a leg, that employee became depressed.  Not to belittle depression - it can indeed be very debilitating - but hazards to mental health clearly aren't easily compared to hazards to physical health.)

What the Board member is forgetting is that, today, there is only one principle of statutory interpretation, which is this:  "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament."

So, with harassment now having a place on the podium of the OHSA, it does not make sense to continue to read the employer's general obligations to maintain a safe working environment as not including an obligation to maintain an environment which is harassment free.  If we interpret the OHSA as it stands now to permit reprisal for complaints made under the mandatory policy, or as not imposing obligations on the employer in respect of the manner in which complaints under the policy are handled, it would completely undermine the purpose of the mandatory policy.

If this interpretation holds the day, then Bill 168 becomes essentially meaningless.  It would require employers to incur the expense of developing policies, without contributing to employee protection in any meaningful way.

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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.

Is Your Workplace in Compliance with Bill 168?

In June 2010, amendments to Ontario's Occupational Health and Safety Act became effective, requiring most employers to implement policies and programs dealing with harassment in the workplace and violence in the workplace.  It was big news in the HR field and employment law field at the time, and most large employers amended their policy manual to bring themselves into compliance.  Yet many workplaces did not.

Many employers don't make much use of policies.  I strongly recommend the implementation of a good policy manual for just about any workplace - and I can assist in the development of such - but one of the striking aspects of Bill 168 is that it made certain policies legally mandatory.  Not just a good idea.

Especially in light of the mandatory requirement, there are a lot of risks associated with not having them.  First, it's a quasi-criminal offence:  An employer can be charged for breaching the Occupational Health and Safety Act.  When injuries occur due to such breaches, fines typically run upwards of five digits, and it isn't at all uncommon to see fines in excess of $100,000.  Earlier this year, Metro Ontario was fined $350,000 (plus, as always, a 25% victims surcharge) after a young worker was killed at a Mississauga store.

Even beyond those liabilities, however, there's the additional risk that liability could be incurred in respect of employees.  If an employee is the victim of harassment or violence in the workplace, it will be much easier for an employee to make out a case for constructive dismissal, possibly seeking aggravated damages in addition to all else, if the employer has neglected its statutory obligation to provide a recourse mechanism.

On the flip side, while this hasn't worked its way through into the jurisprudence yet, I expect that it will be much harder than before for an employee to make out a constructive dismissal case on the basis of harassment where they haven't taken advantage of recourse made available to them in a properly-implemented policy.

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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.

Occupational Health and Safety not just for workers

Ontario's Occupational Health and Safety Act has some pretty rigourous obligations on employers. Generally, we regard the Act as being designed to protect workers from occupational injuries or illnesses. The employer is required to take such steps as may be necessary to provide a safe environment to work in, and the failure to do so can result in significant fines.

What about workplaces that are open to the public, though? Does the Occupational Health and Safety Act create obligations on an employer related to safety of customers and other members of the public?

The Divisional Court recently answered this question in the affirmative. In Blue Mountain Resorts Limited v. Ontario (Ministry of Labour and Ontario Labour Relations Board), the Court heard a judicial review application relating to the drowning of a guest in an unsupervised swimming pool in 2007. The question is whether or not this death triggered the employer's obligations to report the incident to a Ministry Inspector, and the Court held that it did. Even though no workers were present at the time of the incident, and the incident did not involve a worker, the language in the Act refers to the death or critical injury of any "person" in a workplace, not just workers. The whole Blue Mountain resort, it seems, is a workplace.

This reporting obligation, accordingly, is going to be triggered anytime there is any death or critical injury whatsoever in any workplace - i.e. in just about any place where commercial services are offered.

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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.