Saturday, 13 April 2013

Workplace Harassment Complaints and Bill 168

Are the changes to Ontario’s Occupational Health and Safety Act really capable of influencing the way we approach workplace harassment cases? For the reasons that follow, I would argue that they are not.

Background

On November 12, 2005 Windsor nurse Lori Dupont was slain at Hôtel-Dieu Grace Hospital, by her ex-boyfriend Marc Daniel, who worked at the hospital as an anesthetist. At a corner’s inquest following that tragic death, Nurse Brenda Hooper testified that she had to run interference between Dupont and Daniel, who she characterized as a bully who often threw his weight around.

In response to that case, and likely others, in April 2009 then Ministry of Labour, the Honourable Peter Fonseca introduced Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) 2009.

Bill 168 was welcomed by many, including this author, and it was hoped that the changes to Ontario law to be brought about by Bill 168 would have a real, tangible impact on the culture of workplace harassment and violence.

What does Bill 168 Do?

On December 15, 2009 Bill 168 received Royal Assent and the law was entered as chapter 23 in the 2009 Statues of Ontario. The changes to the Occupational Health and Safety Act came into effect on June 15, 2010.

Amongst other things, the law amended the Occupational Health and Safety Act by adding a definition of “workplace harassment:”

“workplace harassment” means engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.

The law also required employers to:

  • prepare a policy with respect to workplace harassment (s. 32.0.1(1)(b));
  • review the policy as often as is necessary, but at least annually ((s. 32.0.1(1)(c));
  • develop and maintain a program to implement the policy (s. 32.0.6(1)); and
  • provide a worker with information and instruction that is appropriate for the worker on the contents of the policy and program with respect to workplace harassment (s. 32.0.7(a)).

The law also required changes with respect to violence in the workplace, but those changes will not be considered in this post.

What’s Missing from Bill 168?

What was missing from Bill 168 and what is still missing from Ontario law, I would argue, is actual consequences for employers who fail to develop a pragmatic or responsive policy to deal with complaints of workplace harassment.

Note that the law only says employers must have "a" policy and program to respond to workplace harassment; nowhere does the law say that those policies and programs have to be responsive or of practical value to employees.

Furthermore, as the cases considering Bill 168 have demonstrated, it would appear that the Ontario Labour Relations Board is not keen to fill in those gaps.

Cases to Consider Bill 168

Cases considering the changes brought about by Bill 168 have been few. Where the Labour Board has considered Bill 168, however, the outcome has not been as some may have hoped.

Pro-Cut Concrete Cutting Ltd

In Labourers’ International Union of North America, Local 506 v Pro-Cut Concrete Cutting Ltd, 2013 CanLII 1240 (ON LRB), released January 11, 2013 the Ontario Labour Relations Board declared that the employer had failed to:

  • prepare, review and post policies with respect to workplace violence and harassment, contrary to s. 32.0.1 of the Occupational Health and Safety Act;
  • develop and maintain a program to implement policies with respect to workplace harassment and violence, contrary to ss. 32.02 and 32.0.6 of the Occupational Health and Safety Act; and
  • provide information and instruction for its workers on the contents of its policies and programs with respect to workplace harassment, contrary to s. 32.0.6 of the Occupational Health and Safety Act.

The result? The employer was directed to cease and desist from violating the provisions of the Occupational Health and Safety Act.

No damages were awarded. No further sanction was imposed.

Conforti

Conforti v Investia Financial Services Inc, 2011 CanLII 60897 (ON LRB), is a more telling decision. The question that the Ontario Labour Relations Board was asked to resolve in that case was whether being discharging (read: firing) an employee for making a harassment complaint is a violation of the Ontario Occupational Health and Safety Act.

At first blush many might think that the answer to that question would be obvious: no, an employer must not be able to fire an employee for making a complaint of workplace harassment. The law requires employers to have policies and procedures for making such complaints. If an employee could be fired for making such a complaint, what would be the point of the law?

Furthermore, section 50 of the Occupational Health and Safety Act contains provisions that provide that an employer cannot:

(a) dismiss or threaten to dismiss a worker;

(b) discipline or suspend or threaten to discipline or suspend a worker;

(c) impose any penalty upon a worker; or

(d) intimidate or coerce a worker,

because the worker has acted in compliance with this Act or the regulations or an order made thereunder, or has sought the enforcement of this Act or the regulations.

As highlighted by OLRB Vice-Chair Brian McLean, however, the Act only gives the Board power to act if worker complains that he or she has been subject to dismissal or discipline, threat of dismissal or discipline, intimidated or threatened or coerced by employer’s because the worker has “acted in compliance with the Act”; when a worker has given evidence, or when a worker “has sought the enforcement of the Act or regulations.”

The question, as framed by the Labour Board, therefore was whether making a harassment complaint to one’s employer was seeking the enforcement of the Act.

In addressing the same concerns as highlighted in the section above titled “What’s Missing from Bill 168” Vice-Chair McLean wrote that:

[11] … section 32.0.1(b) of the OHSA requires an employer to create a policy with respect to workplace harassment. Sections 32.0.6 and 32.0.7 of the OHSA require an employer to develop and maintain a program to implement the policy with respect to workplace harassment, and to provide a worker with information and instruction that is appropriate for the worker on the contents of the policy and program with respect to workplace harassment. The Applicant makes no allegations that the Respondent has not fulfilled these obligations or that he was discharged for seeking to enforce these provisions of the OHSA.

[12] The OHSA provides no further duties or obligations with respect to workplace harassment

[13] Therefore, it appears the OHSA only requires an employer to put a workplace harassment policy and program in place and to provide a worker with information and instruction as appropriate. The OHSA does not provide any further requirements and, in particular, does not provide that the duties under ss. 25, 27, and 28 apply with respect to workplace harassment. Further, the OHSA provides no specific rights to a worker with respect to workplace harassment.

[15] In the case of an employee who complains that he has been harassed, there is no provision in the OHSA that says an employer has an obligation to keep the workplace harassment free The only obligation set out in the Act is that an employer have a policy for dealing with harassment complaints. The legislature could very easily have said an employer has an obligation to provide a harassment free workplace but it did not.

In resolving the issue of whether being fired for making a complaint of workplace harassment was a reprisal in violation of section 50 of the Occupational Health and Safety Act, set out above, Vice-Chair McLean held:

[16] If the employer simply ignores its obligations and doesn't create a policy, and a worker asks the employer to do so, and the employer penalizes the worker, then that worker can apply to the Board under section 50 on the basis that he was seeking enforcement under the Act. He or she seeks enforcement of the Act by asking the employer to comply with its obligation. In response to that request, the employee was penalized. A similar argument can be made for the worker who points out to the employer that a specified portion of the statutory requirement has been omitted. If, for example, an employer's policy had no measures and procedures for workers to report incidents of workplace harassment to the employer, and an employee was fired by insisting that the policy be changed to accord with the Act, that person can apply under section 50 on the same basis.

[17] What it appears the Board does not have the authority to do is to adjudicate upon the practical application of a policy that otherwise complies with the Act. If an individual complains under an employer's workplace harassment policy and doesn't like the way the employer handled the investigation (i.e. it didn't interview anyone), and then that person complains to the employer about its poor investigation and is fired, the Board appears not to have the authority under section 50 to deal with that situation. The discharge is not a reprisal as defined under section 50, because the Act does not dictate how an employer will actually investigate a harassment complaint and protect a worker who complains about that practical task not being performed properly. The Act just does not give us the authority to deal with this situation.

In the result, and given the facts of that case, which are immaterial to this analysis, Vice-Chair McLean on behalf of the Ontario Labour Relations Board held that the application was to be dismissed.

Vice-Chair McLean’s reasoning was expressly adopted in a later case, Harper v Ludlow Technical Products Canada Ltd, 2011 CanLII 73172 (ON LRB).

More recently, however, at least one member of the Board has declined to dismiss such an application at a preliminary hearing, see Murphy v. Carpenters, 2011 CanLII 83015 (ON LRB), (Caroline Rowan, Vice Chair.)

Ljuboja v Aim Group Inc

As is more fully canvassed in the post Has the Ontario Labour Relations Board Finally Given Some Protection to Harassed Employees? in the case of Ljuboja v Aim Group Inc, 2013 CanLII 76529 (ON LRB) the Ontario Labour Relations Board may have finally afforded some protection to harassed employees.

In that case OLRB Vice-Chair Jesse M. Nyman still held that the Act does not provide workers with a right to a harassment free workplace, however, he was able to find that the act did afford some protection to employees. On the later point Vice-Chair Nyman wrote the following:

[49] 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?

[50] An interpretation that allows employers to penalize or retaliate against workers who make a workplace harassment complaint would entirely undermine the procedural mechanism that the Act creates through which harassment issues can be brought forward in the workplace. If workers can be terminated for making a complaint that the employer’s legislatively imposed policy enables them to do, then only the most intrepid or foolish worker would ever complain. In practical terms, there would be no measure or procedure for making a complaint of harassment. Moreover, the occupational health and safety value, whatever it may be (and I have speculated above as to some of the possible values of requiring such a process), that caused the Legislature to impose this obligation on employers would be eviscerated.

[51] The corollary to this is that a worker who makes a workplace harassment complaint to his or her employer is seeking the enforcement of the Act because the worker is seeking to have the employer comply with its obligation to enable the worker to make the complaint. Alternatively the worker is acting in compliance with the Act by accessing the statutorily prescribed mechanism by which they are able to bring forward complaints of workplace harassment to their employer. Either way, the worker is seeking enforcement of the Act or acting in compliance with the Act, thereby bringing them within the ambit of the protection of subsection 50(1) of the Act.

[57] In order to give real effect to an employer’s obligation to minimize or eliminate risks of workplace violence, the program that the employer must develop and maintain to implement workplace violence policy must be more than merely recording these measures and procedures in writing. If it were so limited, then there would be no obligation on an employer to actually carry out the measures and procedures that are to control the risks of workplace violence or are to be used for summoning immediate assistance when workplace violence occurs. Such an interpretation cannot be correct. Rather it must mean something more, which must be an obligation to actually take steps to have the policy carried out.

However, in a comment that will strike most workers as being very one step forward, two steps back, Vice -Chair Nyman then went on to note that:

[61] Having said all of the foregoing, it must be underscored that I accept nearly all of the reasoning in Investia. In particular, the Act places no obligation on employers to provide a harassment free workplace or to provide any specific type of investigation or outcome of a harassment complaint. While the Board need not entirely decide the issue in this case, applications that allege only that an employer failed to provide a harassment free workplace or that simply take issue with the employer’s determination following a complaint are unlikely to succeed or be heard.

[62] To this end, even when the Board determines that it will inquire into any given application, the focus of the Board’s inquiry will almost never be upon the underlying allegations of harassment. Those allegations are, at the very best, peripheral to the issues that the Board must address, which are exclusively whether a workplace harassment complaint was made, whether the worker suffered some detrimental impact and whether there is a causal connection between the two. This latter issue will, in most cases, be focused on the employer’s explanation and rationale for its actions. In the usual case, the only inquiry that the Board will make into the underlying allegations of harassment is whether the employer terminated, or otherwise penalized, the worker for having filed the harassment complaint. Beyond that, in virtually all such proceedings, the nature, extent and details of the underlying harassment allegation will be irrelevant to the issues before the Board. The Board is not the appropriate forum to adjudicate upon the issues that lead to the filing of the harassment complaint or the substantive outcome of the employer’s investigation.

[63] In this respect, the Board considers it important to reiterate that remedies for complaints about workplace harassment and the harm caused by that harassment will have to be found elsewhere, such as at common law or, if the harassment is based upon a protected ground of discrimination, at the Human Rights Tribunal of Ontario. While the Act obligates employers to have a policy that enables workers to bring complaints forward, and the Board has the authority under section 50 to protect individuals who invoke that procedural right, the Board does not have any general authority to remedy the underlying workplace harassment that gave rise to the complaint in the first place.

Where do These Decisions Leave Employees?

In November 2010 I was asked to look into the issue of Workplace Burnout and present a paper upon that topic at the annual civil litigation conference of the Carleton County Law Society. That paper can still be found here: Sick of Work? The Legal Minefield of Workplace Burnout.

At that time I looked at two other possible avenues for employees suffering at the hands of workplace harassment: WSIB claims and suing one’s own employer.

With respect to the issue of making WSIB claims for workplace stress, I would direct interested readers to the post: Claims to the WSIB for Mental Stress.

With respect to suing one’s own employer, the 2010 Court of Appeal for Ontario case of Piresferreira v. Ayotte, 2010 ONCA 384 (CanLII), (leave to the Supreme Court of Canada refused: 2011 CanLII 2095 (SCC)) remains instructive of the point.

In that case the court held that there is no such cause of action as “negligent infliction of mental suffering” for employer conduct during the course of employment.

For more on the issue of suing one’s employer for mental suffering caused by workplace harassment and bullying, I would direct interested readers to the post: Tort Damages Place in Wrongful Dismissal Cases.

Commentary

I should make it plain that these views reflect my own personal opinion and do not necessarily reflect the opinions of Kelly Santini LLP.

In my opinion the practical effect of the changes brought about by Bill 168 have been minimal at best.

While I hold out hope that by forcing employers to have policies and programs to address issues of workplace harassment, and especially workplace violence, incident rates of the same have decreased, anecdotal evidence as reported in seems to suggest otherwise. (See for example this webinar put on by the HRPA: The Rise of Workplace Stress and Harassment Claims: What Employers Can Do.)

What are required, I believe, are further changes to the Occupational Health and Safety Act. While Bill 168 was undoubtedly a step in the right direction, as the cases above demonstrate, it simply was not enough.

Takeaways for Employees with Labour Pains

If you are a worker in Ontario and believe that you are the victim of workplace harassment all hope is not lost. There are ways to address the issue and I would invite you to contact me or one of my colleagues at Kelly Santini LLP to discuss those options.

Takeaways for Employers with Labour Pains

For Ontario employers the point needs to be made that notwithstanding my opinions above on the potential utility of such policies and programs, the same are still legal requirements for most Ontario employers. If you are still without a policy for addressing workplace harassment and workplace violence, the employment lawyers at Ottawa’s Kelly Santini LLP would be happy to be of service to you.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260. You may also use the contact box at the top of this page.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Sean Bawden, publisher of Labour Pains, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.



11 comments:

  1. I find that the other element that is missing from Bill 168 is how an employer can utilize the power they have in the administration of this Bill. For example, an employer can willfully carry out animus against an employee without fear of reprisal during their perceived and sometimes wrongly directed investigation into harassment. There is no reprisal upon an employer in how they may wrongly investigate or penalize an employee. They can do anything in the name of Bill 168 and claim "we did our job, didn't find anything, case closed", in the meantime the employee they claim was perpetrating the harassment has actually been the victim of the employer's harassment as they carry out a sham of a Bill 168 workplace investigation.

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  2. What Sean stated and George commented are so true that they coincide exactly with my personal experience. To be more exact, that Bill 168 (I agree it was one step in the right direction) did worse than minimal. In a letter to my MPP in December 2012, I stated that 'I was inspired by Bill 168 to include Anti Harassment into law. However, when there is no mechanism for its enforcement, it actually made the workplace less safe for workers. This is because it created a false impression of safety. As a result workers complained on harassment, acted tougher against harassment, but became entrapped by retaliation. When this happen, MOL told us there is nothing they will do.'

    I also agree that employer's reprisal to employee's harassment complaint ARE not reprisal in MOL's eye. One case in 2012 was accepted as reprisal complaint by MOL and rejected as it was not reprisal for enforcement of Bill 168, like what Sean discussed. However I was lucky that a previous phone call to MOL hotline complaining my employer did not have 'effective policy' by not follow up on the procedure, which made further reprisals a different nature.

    Saskatchewan now has included mental harassment into their H&SA law after Quebec had it for many years. It's time that Ontario should look into amendment to Bill 168.

    I would like to receive further information.

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    1. Hi Jenny. I read your post with great interest. I would like to find out more about with happened with you in your workplace as I have encountered a similar situation. You may contact me at: accountability11@hotmail.com

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    2. Hi, Jenny! Call me Anonymous2. I totally agree with what you said: "... when there is no mechanism for its enforcement, it actually made the workplace less safe for workers. This is because it created a false impression of safety. As a result workers complained on harassment, acted tougher against harassment, but became entrapped by retaliation." This is actually what happened to me. I was being harassed by a bully colleague who wasn't even my boss. I felt like I was going to lose my sanity, so I reached out to my boss about the stress that this was causing, but my boss made it very clear that he wasn't going to help me. He had said in essence, on three different occasions, that if I cannot handle the stress, I shouldn't be working there. I researched on harassment on the internet and found the OHSA website and read everything I could. It gave me a false sense of security over reaching out to HR, so I did. I am not aware of any investigation that was held, but I was brought into a room with the bully, our boss, and HR, but the bully denied everything, and the boss took her side. I noticed a concerted effort to make it appear that I had performance issues, so I reached out to HR again and showed concrete proof of my performance. A week after that meeting with HR, I was terminated. No reason was given in the termination letter. I feel that I would have been better off if I had heeded the warning of colleagues who have been there for a long time - that reaching out to HR about harassment is a sure-fire formula for getting fired. I love this post by Sean Bawden. I wish I found it last month. I hope more of this type of information reaches people who are suffering from harassment. False security is so dangerous!

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  3. Hi Sean, great post. I've been following the Investia line of cases pretty closely, from the start - I thought that Harper v. Ludlow pretty much wrapped it up, at least unless and until a case goes up to the Divisional Court. Murphy v. Carpenters was distinguishable, finding that making a harassment complaint in the *absence* of a policy could still trigger reprisal protection.

    But then there were a couple of other decisions which didn't follow it - Walters v. PPL, in January 2012: "In my view, it is unnecessary to decide the issue of jurisdiction in this case", because, on the facts, the termination had nothing to do with any complaint of harassment.

    Then there was Alternate Chair Diane Gee's decision in Kazenel v. Citi Cards in March 2012, referring to the obiter in Investia and finding that: "This issue has not yet been decisively determined by the Board."

    Since then, there have been a very large number of cases where the Board has either declined to dismiss on the basis of the reasoning in Investia, or has noted the reasoning in Investia but found it unnecessary to decide the point because the case could be dismissed on other grounds. (Which is a bit of an awkward approach, since Investia raises a jurisdictional question...but so be it.)

    On the other hand, there are a couple of cases decided by Vice-Chair Wilson (i.e. Nunes v. Ulbricht) which consider the issue settled: "The Board has determined that it does not have jurisdiction to inquire into a harassment complaint or an allegation that an employee has been dismissed for making a harassment complaint known to the employer." And there's Barton v. Commissionaires, which simply states "The OHSA does not provide any protection for workplace harassment."

    While more legislative clarity would be nice, I'm not sure it should be necessary. Long before Bill 168, there were already some arbitral decisions implying that the employer's general obligations regarding OHS captured the health and safety risks associated with harassment. Especially now, with the OHSA specifically including provisions dealing with harassment, that seems to be an inevitable conclusion. Remember: "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."

    It's simply incoherent to say that an employer has to implement a policy detailing how it will respond to a harassment complaint, but is nonetheless free to ignore the policy - and even engage in reprisals against the employee who made the complaint.

    I grant that the language is somewhat bare, but I might argue that, where the Act requires that the program "set out how the employer will investigate and deal with" harassment, the word "will" implies that the program needs to have some predictive value.

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    1. Dennis there is a very recent decision that is going to be worth a read: 0852-13-OH Ljuboja v. The Aim Group Inc. and General Motors Canada Limited (Jesse Nyman, Vice Chair.) Finding that a termination following a complaint may be a reprisal.

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    2. Darby Dunn December 17,2013 7:30 pm
      I have been a victom of workplace herrassment due to a work injury I had a head injury in 1992 and have been herrassed by WSIB and my employer for my pshycological injury claim. At present I'm on OMERS disability pen. and CPPD. It is ashame that bill 168 was not derived from the Austalian policy. There law covers both herrassment and violance and it is not only the employee that is responcable for there actions but the employer, maybe we can learn from others in this world.

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  4. The one thing I would like to see is a complaint avenue to the police in cases of psychological harassment. Psychological harassment should be included in the criminal code. I made a complaint and it was never investigated and the accused were advised and left in total control of my situation. I am sure that people can imagine every horrific result of that without me having to describe it - it should be criminal. By the end of the harassment, very few victims have the capacity to withstand any sort of adversarial legal process, have no finances to speak of and have been completely destroyed. I do not believe this has been dealt with properly - victims should not have to go to the employer at all, but straight to the police.

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    1. I agree. I have witnessed psychological harassments happening around me, and the victim always ends up getting fired. In one of my past jobs, a colleague who has held the job for 10 years was yelled at and bullied almost on a daily basis by her new supervisor, and when she complained to HR, she was given a bad performance review by her supervisor, and eventually fired. The complaints of harassment were dismissed "because no one corroborated the complainant's story". Of course! The employees who were asked to testify all feared for their jobs and said nothing. One person said, "I love my friend and would like to testify, but I love my family more and I have to keep my job for them." Psychological harassment is a cancer in the workplace. I hope a cure will come sooner than later.

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  5. This comment has been removed by the author.

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  6. Did you get a signage done and gotten a copy my employer retaliated and there is no mention on the form that a complaint ant must sign for his statement too be official and given a copy of what was written by human resources on his claim for bullying in workplace...

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