Is an Ontario worker who makes a complaint of workplace harassment to his or her employer seeking the enforcement of the Ontario Occupational Health and Safety Act or acting in compliance with that Act?
Can an employer legally fire someone who makes such a complaint without that termination being deemed an at of "reprisal" by the Ontario Labour Relations Board? Until the Ontario Labour Relation Board’s decision in Ljuboja v Aim Group Inc, 2013 CanLII 76529 (ON LRB) on November 22, 2013, the answers from this author would have been no, the employee is not seeking the enforcement of the Act, and yes, the employer can legally terminate the employee without the Labour Board deeming the termination as an act of reprisal. However, things may have changed.
Regular readers of this blog will know that I have a certain degree of cynicism when it comes to the efficacy of Bill 168 and the changes it made to Ontario’s Occupational Health and Safety Act. For readers wanting a refresher on those earlier opinions consider my post: Workplace Harassment Complaints and Bill 168.
However, thanks to the decision made by the Ontario Labour Relations Board on November 22, 2013, Ljuboja v Aim Group Inc, 2013 CanLII 76529 (ON LRB), there is at least some hope that things might finally be turning around.
The Decision in Conforti v Investia Financial Services Inc, 2011 CanLII 60897 (ON LRB)
As readers of this blog will recall, in the 2011 case of Conforti v Investia Financial Services Inc, 2011 CanLII 60897 (ON LRB) the Ontario Labour Relations Board held that an employer’s dismissal of an employee who had made a complaint of workplace harassment pursuant to the provisions of Bill 168 was not an act of “reprisal” as defined within the Occupational Health and Safety Act. While my earlier post goes into more detail about the decision in that case, the key point of that case was the Board’s decision that:
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.
For years the Ontario Labour Relations Board followed the Conforti v. Investia decision, and countless other cases have reached a similar conclusion.
The Decision in Ljuboja v Aim Group Inc, 2013 CanLII 76529 (ON LRB)
Skip the review, and go straight to my Commentary.
The Ljuboja decision changes things. In the Ljuboja case, OLRB Vice-Chair Jesse M. Nyman was tasked with answering whether Mr. Ljuboja’s case could even go to a hearing. The employers in that case had argued that, based on the decision in Investia, no recognized act of reprisal has occurred. The decision cited, then, is only with respect to the preliminary issue of whether Mr. Ljuboja would even get a hearing.
In the decision it is clear that the issue in dispute was whether an act of reprisal, contrary to the provision of section 50 of the Occupational Health and Safety Act had occurred. The employer, citing the case of Investia, amongst others, argued that no act of reprisal had occurred, while Mr. Ljuboja took the position that it had.
In an important finding, Vice-Chair Nyman held that Mr. Ljuboja’s claims did not meet the test for a complaint of workplace violence. Therefore, if Mr. Ljuboja’s claim is to succeed, it would have to succeed as a claim of workplace harassment. As framed by the Vice-Chair, “The issue for the Board is whether a worker who is making a complaint of workplace harassment to his or her employer is seeking enforcement of the Act or acting in compliance with the Act.” (Para. 28)
In distinguishing Mr. Ljuboja’s case from the Investia decision, and in finding that the Investia decision was not binding upon the Board, Vice-Chair Nyman held that:
The Board did not dismiss the application in Investia, because it had no jurisdiction to inquire into the complaint, but rather on the basis that the applicant’s termination was the result of his abusive and insubordinate behaviour, regardless of the fact that that behaviour may have been in the context of making a “complaint” to his employer. The Board therefore exercised its discretion to decline to inquire into the complaint. Given this, the Board’s comments quoted above are, strictly speaking, obiter dicta. To this end, at paragraph 21, the Board expressly refrained from determining whether the Board has jurisdiction over reprisals for harassment complaints. Therefore, it cannot be said that the Board conclusively determined this issue.
Vice-Chair Nyman thus proceeded to start from the beginning. In a very well reasoned and articulated decision, the Vice-Chair started by looking at the legal intentions of the provisions of the Occupational Health and Safety Act.
In attempting to decipher the purpose of the changes to that Act made by Bill 168, Vice-Chair Nyman made the following, important finding: the Act does not provide workers with a right to a harassment free workplace. (Para. 35.) Then, echoing the concerns that this author has made since the introduction of Bill 168, and certainly since the decision in Investia, Vice-Chair Nyman noted that:
35. With the passage of Part III.0.1 [of the Occupational Health and Safety Act] the Legislature imposed substantial obligations on employers with respect to the prevention of workplace violence that do not exist with respect to workplace harassment. These include implementing measures and procedures to control the risk of workplace violence and summoning immediate assistance if workplace violence is even likely to occur (subsection 32.0.2(2)(a) and (b)); conducting a workplace violence risk assessment and subsequent reassessments (subsection 32.0.3); taking steps with respect to preventing domestic violence in the workplace (subsection 32.0.4); and, expressly clarifying that the employer duties in section 25 (including subsection 25(2)(h)), the supervisor duties in section 27 and the worker duties in section 28 all apply as appropriate with respect to workplace violence (subsection 32.0.5).
36. None of these obligations appear with respect to workplace harassment and nowhere in Part III.0.1 or elsewhere in the Act are employers explicitly obligated to provide a harassment free workplace, at least with respect to how broadly that term is defined in section 1 of the Act. Given the clear obligations the Legislature placed on employers with respect to workplace violence at the same time that the workplace harassment provisions were enacted, the omission of these obligations with respect to workplace harassment cannot be attributed to legislative oversight. Rather, the Legislature’s omission of these obligations must have been deliberate.
37. What then are the obligations placed on employers with respect to workplace harassment? An employer must:
a. Prepare a policy about workplace harassment (section 32.0.1(b));
b. Review the policy annually (section 32.0.1(3));
c. Post a written copy of the policy in the workplace (section 32.0.1(2));
d. Develop and maintain a program to implement the policy (section 32.0.6(1)) that must:
i. Ensure that the program includes measures and procedures for reporting incidents of workplace harassment to the employer or supervisor (section 32.0.6(2)(a));
ii. Ensure that the program sets out how the employer will investigate and deal with incidents and complaints of workplace harassment (section 32.0.6(2)(b)); and,
e. Provide workers with information on the contents of the policy and the program (section 32.0.7(a) and (b)).
38. Reading these provisions as a whole, the obligation on employers with respect to workplace harassment is entirely procedural. There is an obligation on an employer to develop and implement an internal process for reporting, investigating and dealing with workplace harassment issues. There is, however, no obligation on an employer to provide any substantive result and thus no ability for a worker to insist on any particular outcome. Moreover, employers are provided with significant leeway in determining the process that they will adopt by which workers may make complaints and those complaints will be investigated and dealt with. There are in fact no specific procedural criteria set out in the Act that must be adopted by employers other than including measures and procedures for reporting incidents of harassment to the employer or supervisor and requiring the employer to set out how it will investigate and deal with incidents and complaints of workplace harassment. While the Legislature has authorized the prescription of other elements by regulation, no such regulation has yet come into being.
Vice-Chair Nyman then went on to consider the Investia decision and its conclusion that the Board had no power to consider a termination following a complaint of harassment as an act of reprisal. After respectfully disagreeing with that conclusion, Vice-Chair Nyman went on to hold that:
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? [Board’s emphasis.] 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.
The Board thus determined that it did have jurisdiction to adjudicate claims of reprisal. Note, however, that no actual decision was made in Mr. Ljuboja’s case as the decision considered above only contemplated the preliminary issue of whether his case could even be heard.
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.
It is hardly a secret that I have been cynical and pessimistic about the true utility of Bill 168 as compared to its much-celebrated introduction. The Investia decision did little to challenge that perspective.
However, with the decision in Ljuboja there is some hope. What the OLRB has finally done is read into section 50 of the OHSA a provision whereby the Board will recognize a termination in response to a legitimate complaint of workplace harassment as an act of reprisal. This is a positive step for employees while placing very little, if any, burden on employers.
For too long practitioners, reading the Investia decision have been forced to warn Ontario employees considering making a complaint of workplace harassment of the potential for employers to fire the complaining employee. And while the employee would have undoubtedly had remedies for the dismissal, those remedies have not, perhaps until now, included the potential for reinstatement. The Ljuboja decision is, unquestionably, a sea-change moment.
Of course, we are still a long way from a final resolution of this matter and as much as one would like to be optimistic, there are still nagging concerns. For starters, the Ljuboja decision only denied the employer’s preliminary motion to have the case dismissed; Mr. Ljuboja has not actually won anything yet.
Furthermore, there is always the potential for a judicial review (a kind of appeal) of Vice-Chair’s Nyman’s decision, which may result in a reversal of the Board’s decision. So who really knows where this case is going to end up?
For now, however, there is a least a glimmer of hope that employees being harassed in the workplace can at least make complaints pursuant to their workplace policies without the fear of an act of reprisal.
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.