The Ontario Labour Relations Board (“the Board”) recently released a pair of decisions which consider the scope of the amendments to the Occupational Health and Safety Act (“the OHSA”) introduced in 2009 under Bill 168. These amendments mandate the creation of workplace policies with respect to workplace harassment and violence. Among other things, such policies are required to include measures and procedures for workers to report incidents of workplace harassment to the employer, as well as setting out how the employer will investigate and respond to these complaints.
Under the OHSA,employees can bring a complaint if they feel that they have been subject to a workplace reprisal for seeking to enforce their rights under the Act. In Investia Financial Services Inc., a worker brought allegations that he had been dismissed as a reprisal for making complaints of harassment, contrary to the Bill 168 amendments. Shortly afterwards, in Ludlow Technical Products Canada Ltd., the Board addressed an employee’s claim that the employer had failed to investigate her complaint of harassment in accordance with its Bill 168 anti-harassment policy.
In dismissing both complaints, the Board started from the premise that it only had the jurisdiction to hear disputes expressly provided for by legislation. The question became what powers were given to the Board under the Bill 168 amendments.
In this respect, the Board stated that the Bill 168 amendments do not appear to create an express obligation on employers to prevent workplace harassment, do not provide the Board with the jurisdiction to inquire into allegations that an employee was fired for complaining about harassment, and do not provide the Board with the jurisdiction to adjudicate the practical application of a workplace violence and harassment policy.
Instead, the OHSA simply requires employers to put a workplace harassment policy and program in place and provide further information and instruction to employees as appropriate. Any complaints with respect to the application of the harassment policy may be dealt with by the grievance procedure (if the workplace is unionized) or through court action, but not through the Board.
These decisions seem to restrict the potential scope of employer liability under the recent Bill 168 amendments. While employers must establish anti-harassment policies and procedures for dealing with allegations of harassment, employees do not appear to have recourse against employers before the Board if they have been harassed and are not satisfied with how an investigation was conducted. The only recourse employees have before the Board is whether the employer has put in place a workplace harassment policy and program.
Even so, employers must be aware that these decisions do not impact obligations regarding harassment imposed by laws other than the OHSA, such as the Human Rights Code. Also, unlike workplace harassment, the OHSA does impose obligations on the employer to prevent workplace violence.
If you have any questions about the implications of these decisions, or any other questions related to workplace harassment, please do not hesitate to contact a Mathews Dinsdale lawyer.
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