The Ontario Labour Relations Board (OLRB) has expanded the scope of its authority to consider complaints arising from the proposed Bill 168 workplace harassment amendments to the Occupational Health and Safety Act (OHSA).
If recent OLRB interpretations are adopted, the board’s jurisdiction regarding harassment policies and programs will broaden significantly.
Change Driven by Two Decisions
The proposed changes to Bill 168 are based on two recent OLRB decisions:
- In Confortia v. Investia Financial Services, Inc., a reprisal complaint was filed with the board by a worker whose employment was terminated shortly after he asked his employer to investigate his harassment complaint. The OLRB commented that its statutory authority was limited. It further reasoned that because an employer’s obligations did not extend to ensuring a harassment-free workplace (they covered only creating a policy and providing training), the reprisal provision did not hold.
- Essentially, the board concluded, a complaint had to relate to negative consequences for a worker seeking OHSA enforcement – and being fired for making a complaint did not fit this parameter.
- Further, the OLRB refrained from deciding whether it had jurisdiction over reprisal complaints for workplace harassment, thus dismissing the case on a different basis.
- In Ljuboja v. Aim Group, Inc., the board again considered a reprisal complaint by an applicant whose employment was terminated following a harassment complaint. And again, responding parties argued that the board lacked jurisdiction to hear the complaint.
It was subsequently found that Investia did not conclusively determine the scope of the board’s authority to deal with harassment complaints, as ORLB Vice Chair Nyman disagreed with that decision’s reasoning.
- Nyman responded that it would undermine the obligations to have an internal process for addressing harassment complaints if an employer were free to terminate a worker for bringing forth such a complaint. This would strip the employer’s obligation of meaning and “eviscerate” the purpose intended by OHSA.
- Instead, an employer’s obligation to develop and enforce a harassment policy must include an active obligation to enable workers to file complaints without threat of termination.
Employers Retain Some Levity
There is still no obligation for an employer to provide a harassment-free workplace or to provide any specific type of investigation or complaint outcome.
As this issue continues to be debated and likely further interpreted, a wise employer approach would be consulting with their legal counsel to make any advised adjustments to their litigation strategies and expectations around workplace harassment.
The staffing and hiring specialists at Employment Professionals Canada can provide further resources as you fine-tune and improve your workplace policies and procedures. Read our related posts or contact us today for more information!