Friday, 14 December 2012

Section 32 of the OHSA and the Remedial Jurisdiction of the Board

On June 15, 2010, Bill 168, now known as s. 32 of the Occupational Health and Safety Act (OHSA), amended the OHSA. The Act now requires employers to create workplace violence and harassment policies, to develop programs to implement these policies, and to provide employees with information regarding these policies and programs. The Act does not dictate how employers should investigate harassment complaints, nor does it detail how an employer should protect its employees.

The amendment to the OHSA introduced an exciting potential for workers to not only make harassment complaints but also to be protected from harassment complaint reprisals. To date, however, the Ontario Labour Relations Board (OLRB) has failed to assume jurisdiction over said reprisals and has effectively squashed the hope and protections that workers should rightly receive.

Are Reprisals for Harassment Complaints a Violation of the OHSA?

The OLRB has the power to provide reprisal relief under section 50 of the OHSA. The Board may assume jurisdiction where a worker suffers reprisals and has either: "acted in compliance with the Act", has "given evidence" or "has sought the enforcement" of the Act.

Even where one or more of these factors exist, however, the Board can only take jurisdiction if a piece of legislation permits it to. Since s. 32 does not stipulate how an employer should investigate or protect a worker who makes a harassment complaint, early decisions have found that so long as an employer fulfills its basic obligations under s. 32, the Board has no jurisdiction to deal with harassment reprisal complaints[1]. As was stated in Conforti v Investia Financial Services Inc[2]:

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 Problem with the Board’s Decision

These Board decisions are deeply troubling. If Investia and Ludlow carry the day, under the OHSA a worker will have no recourse to the OLRB if he or she should suffer harassment complaint reprisals. In theory, an employer could execute a workplace harassment policy and program and then fire any employee who dared to complain about the employer’s methods of investigating harassment complaints.  

These early decisions have interpreted the legislation with undue narrowness. Such narrow interpretation cannot stand. Legislation is to be interpreted broadly. In Rizzo & Rizzo Shoes Ltd, the Supreme Court stated that:

Today there is only one principle or approach, namely, 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[3].

The courts have also found that it’s permissible to ignore a restrictive view of legislation if “a more liberal approach is dictated by Parliament’s overall intent.[4] 

Are these Decisions Conclusive?
There is hope these decisions do not close the matter. In Walters v PPL Aquatic, the Board acknowledged that Ludlow found the Board did not have jurisdiction to deal with reprisals stemming from harassment complaints, but also then went on to consider the case under the assumption that there may be a protected right under the OHSA to complain of harassment without reprisal. The Board made these considerations even while noting that other decisions “suggest” there is no such protected right under the OHSA[5]. However, to “suggest” is not to definitely determine. In theory, then, until the possibility of bringing harassment reprisal complaints under s. 50 is definitively ruled out, it should be possible for such complaints to be brought to the Board.

Overall Intent

The OHSA is remedial in nature, its object and underlying legislative intent, being to protect workers from health and safety hazards on the job[6]. The only way to attain the object of the Act is to allow the Board to hear harassment reprisal complaints under s. 50. That the Board would be able to assume such jurisdiction is implied by the purpose of the Act.

All Reasonable Precautions to Protect a Worker

Legislative intent aside, the Board is not as powerless to deal with harassment reprisal complaints as Investia would have us believe. Whether or not s. 32 includes an enforcement mechanism, a worker who makes a harassment complaint is still seeking to enforce the Act, if not through s. 32 then via s. 25(2)(h), which is a general duty clause that obliges an employer to take all reasonable precautions to protect a worker. This includes the obligation to provide a safe and harassment free workplace. On its face, s. 25(2)(h) complements the object of the Act to protect the health and safety of workers. There is no reason s.50 relief should not be available to workers just because s. 32 fails to stipulate precisely how an employer should investigate and protect workers. Section 25(2)(h) should suffice to engage s. 50 relief.

To use a general duty clause as a basis for jurisdiction to deal with a harassment and reprisal complaint under the OHSA is not without precedent. In a decision made prior to Bill 168, the Board assumed jurisdiction to deal with a harassment complaint, even though the Act lacked a specific mechanism bestowing this jurisdiction. This was based in part on a section of the Act which places the same obligation on managers as s. 25(2)(h) does on employers. The Board stated that a supervisor cannot act with impunity and must exercise his or her authority in a manner consistent with the OHSA. [7] We would submit that an employer which terminates an employee for exercising his or her right to a safe and harassment free workplace abuses its authority and fails to take every reasonable precaution to protect the worker.  It could well be that the reason s. 32 does not contain an enforcement mechanism is that it doesn’t need one – adequate jurisdictional powers may flow from s. 25(2)(h).

Surely it cannot be that the Legislature intended the amendments to the OHSA to at once address workplace harassment but provide no jurisdiction for the OLRB to hear harassment complaint reprisals.  The very fact that Bill 168 was drafted in the first place speaks to the legislative intent to protect workers from harassment. A broad interpretation is required in order to give s.32 the relevance the Legislature likely intended. Anything short of that is to make the harassment language of the amended OHSA almost completely meaningless. Section 50 relief is vital to the protection of workers against reprisals. Moving forward, we hope future decisions of the OLRB will recognize the Board’s jurisdictional authority to protect workers from employer reprisals.

[1] See: Shlomo Conforti v Investia Financial Services Inc and Industrial Alliance Insurance and Financial Services Inc, 2011 CanLII 60897 (ONLRB) and Harper v. Ludlow Technical Products Canada Ltd, 2011 CanLII 73172 (ON LRB).
[2] Investia at para 17.
[3] Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27 at para 21.
[5] Walters v PPL Aquatic, Fitness and Spa Group Inc 2012 CanLII 77 (ON LRB) at para 24.
[7] Toronto Transit Commission v Amalgamated Transit Union (Strina Grievance) [2004] OLAA No 565 (Shime) at para 237.

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