Tuesday, 4 March 2014

Board bolsters reprisal protections


Since s. 32 was added as an amendment to the OHSA there has been fiery debate about how s. 32 is to be interpreted. The section requires employers to develop workplace violence and harassment policies. That much is clear. What has been unclear is whether a worker who made a complaint under one of these policies could be protected against reprisals under s. 50 of the OHSA for making a complaint.

In Investia[1], an early decision on the subject, the Board stated that it would not have jurisdiction to hear an application made by a worker who asserted that he or she had been the subject of a reprisal. In Investia this was merely a statement on the jurisdictional effect of s. 32 and were not part of the Board’s decision.

However, subsequent decisions tended to follow this line, essentially leaving workers out in the cold[2]. At Watson Labour Lawyers we have long been critical of these decisions and have been convinced that the reasoning in Investia is flawed. In an earlier post, found here, we describe the untenable nature of the Investia decision.

It’s a pleasure to see a recent decision has departed from Investia and taken a more sensible tack with regard to the protections against reprisals that stem from a complaint made under s. 32. In Ljubola v The Aim Group Inc and General Motors of Canada Limited (AIM)[3] the Board made a finding that, in contrast to previous decisions, the anti-reprisal provisions of the OHSA can be engaged when a worker suffers reprisals as a result of making a complaint under the workplace violence and harassment provisions. In other words, the Board ruled that it could have jurisdiction to hear such applications.

The reprisal provisions in the OHSA forbid an employer or a person acting on behalf of an employer from penalizing a worker simply because the worker has acted in compliance with the OHSA or any of its regulations, has sought the enforcement of the Act or regulations, or has given evidence in a proceeding in respect of the enforcement of the Act or the regulations, or in an inquest under the Coroners Act.[4]

The significance of the Aim decision lies in the Board’s finding that a worker who is penalized after making a harassment complaint related to the employer’s workplace policy against harassment, is seeking to enforce the Act. As a result, the anti-reprisal provisions of the Act apply.

Section 32 may not come complete with an explicit enforcement mechanism, but the Board found that the Act does implicitly provide a worker the right to make workplace harassment complaints without fear of employer reprisals. Section 32.06 reads:

An employer shall develop and maintain a program to implement the policy with respect to workplace harassment required under clause 32.0.1(1)(b).

 The Board found that the words “develop and maintain a program to implement the policy” afforded workers the right to the anti-reprisal provisions of s. 50 and gave the Board jurisdiction to hear reprisal complaints stemming from complaints made in accordance with s. 32:
 

            Developing and maintaining a program to implement the policy must be more than merely recording the elements of the policy in writing. It must mean there is an obligation to actively carry out that policy. If this is correct, there is an obligation on an employer to enable workers to make complaints about incidents of workplace harassment. Terminating a worker because they made such a complaint would therefore be terminating the worker because they sought enforcement of the Act or were acting in compliance with the Act[5]
 
Terminating a worker because they sought enforcement of the Act brings both the complaint and the subsequent reprisal within the purview of the anti-reprisal provisions of s. 50 of the Act. From this standpoint, it’s clear the Board has jurisdiction to hear the reprisal complaint of a worker.

The Board went on to criticize the result of an interpretation of s. 32 that ensues if jurisdiction to hear reprisal complaints is not entertained by the Board:
 

            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.[6]

The Board notes that the reasoning in Investia and subsequent decisions following Investia would free the employer of any real obligations while simultaneously destroying any real right a worker has to make a complaint:

            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.[7]

As a result, the Board declined to follow Investia, “to the extent that it stands for the proposition that the Act does not prohibit employers from penalizing or retaliating against workers for making a complaint about workplace harassment under the employer's mandatory policy.”[8]




[1] Conforti v. Investia Financial Services Inc., 2011 CanLII 60897 ("Investia")
[2] See for example: Walters v. PPL Aquatic, Fitness and Spa Group Inc., 2012 CanLII 77, Harper v. Ludlow Technical Products Canada Ltd., 2011 CanLII 73172, Barton v. Commissionaires, 2011 CanLII 18985, Nunes v. AGF Albrecht, 2012 CanLII 67903, Keeprite Refrigeration (National Refrigeration Air Conditioning Canada Corp), [2012] O.L.R.D. No. 220 and Simcoe County District School Board, [2012] O.L.R.D. No. 39.
[3] [2013] O.L.R.D. No. 4309
[4] OHSA, s. 50
[5] Ibid at para 58.
[6] Ibid at para 50.
[7] Ibid at para 49.
[8] Ibid at para 59.

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