Quoted in the Law Times on Bill 168

I've made several posts critiquing the OLRB's interpretation of Bill 168.  Today's Law Times ran an article about the matter, and has quoted me in some of my criticisms.  Perhaps not the most eloquent presentations of my point, but I think the gist is carried.

My argument, in essence, is that the absence of substantive harassment obligations either in the contents of the mandatory policy or in the employer's response to a complaint under the policy completely undermines any effect the new statutory language might have.  The only thing the employer needs to do is have a policy with certain minimalistic components.  However, there's no objective standard for what the policy needs to actually do, no requirement that the employer actually follow its own policy, and no requirement that employees have meaningful access to or redress through the complaint mechanism in the policy.  So long as there's a policy there, the employer has met its harassment obligations under the Occupational Health and Safety Act, according to the OLRB, even if it proceeds to completely disregard everything related to harassment thereafter.

"Buchanan says he disagrees with the board's very literal reading of the act but acknowledges that the amendments brought about by Bill 168 give it very little to go on."

That's a fair assessment of my position.  In the actual interview with the author, I went a step further to point out that I really do understand why the Board would want to take that position:  There's a "floodgates" concern.  If you opened up the door to complaints by people for being victimized by harassment or - worse - for reprisals based on harassment, then the OLRB could conceivably be inundated by complaints of tenuous merits, often arising from legitimate discipline or other legitimate and good faith employer actions.

Though, strangely, the Board's approach at present seems to be equivocating on that concern:  Some jurisprudence says 'We don't have jurisdiction to consider these complaints at all', but most of the cases actually say 'We might not have jurisdiction, but it doesn't matter because the facts in this case don't support the allegations of harassment/reprisal.'  In other words, despite not wanting to open up the floodgates for cases of tenuous merits, they're still considering how tenuous the merits of these cases are, and in fact discovering how easy it is to filter out most of the weak cases.

There's something of a counterpoint presented in the article by lawyer Blaine Donais, noting the total absence of definition of workplace harassment, which supports the floodgates concerns.  It's a legitimate point, and calls for some more discussion.

Harassment is very broadly defined, and on a literal interpretation would indeed seem to capture just about everything unwelcome that could go on in a workplace, from discipline to the assignment of duties that are well within an individual's job description.

But are those things really workplace harassment?  Are those really the kinds of things that the legislature intended to address when building language to protect workers against workplace harassment?  Likely not.  It's a small step of legal interpretation to take "vexatious comment or conduct" to exclude such legitimate exercises of employer authority.  Legitimate discipline, fairly applied, cannot reasonably be considered harassment.  On the other hand, bad faith discipline which is intended to vex the employee is another matter. Similarly, assigning menial tasks to an individual will usually not be harassment; on the other hand, routinely picking an individual for menial tasks for no better reason than personal animosity may be different.  Shades of grey?  Absolutely.  But the arbitral jurisprudence hasn't shied away from these kinds of contextual analyses in the past (consider the 2004 Stina grievance), and in fact the suggestion isn't new that 'harassment' can offend the Act's catch-all provisions about healthy work environments.

Indeed, even on the Board's limited interpretation of the harassment provisions, it still seems unimaginable to think that the employer's policy must or should define harassment as including legitimate discipline.  Giving an employee a complaint mechanism which is properly utilized because he's being asked to show up on time would be, in most cases, a joke.

Donais' comments suggest something of a trade-off, a legislative intention to limit employer obligations in order to protect them from the floodgates.  Perhaps.  On review of the Hansard, it appears that the NDP criticized the Bill for not going far enough.  But the debate doesn't go in that direction.  There's no suggestion in the Hansard that the obligations of employers are being intentionally restricted in that sense.  Rather, while the debate really did focus more on the violence provisions of the Bill, the Minister spoke of violence and harassment almost interchangeably when discussing the Bill's broad objectives of preventing violence and harassment.

I would have preferred that the legislature set out more expressly the limits of employer obligations.  But I don't think that its failure to do so is a bar on Courts and Tribunals interpreting a wider set of obligations, particularly in light of one important fact:

This is the Occupational Health and Safety Act, which is clearly intended to protect the health and safety of workers and workplaces.  It does have catch-all provisions to that effect.  And so the remaining question is whether or not harassment endangers health and safety within the meaning of the Act.  If it does, then employers are obligated to maintain an environment free from harassment.  If it does not, then employers are not so obligated.

...but if harassment is not related to health and safety, then the Legislature would not have included harassment language in the OHSA at all.  In light of Bill 168, it is incoherent to continue to read health and safety, in general terms, as not dealing with harassment concerns.

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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.