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Landmark decision gives insight into workplace harassment and employer reprisal

The Ontario Labour Relations Board has provided what some believe to be the most significant legal interpretation yet of workplace harassment and employer reprisal in the context of the recently enacted Bill 168 amendments to the Occupational Health and Safety Act (OHSA). The case, Conforti v. Investia Financial Services Inc., 2011, was decided on September 23, 2011.

Case overview

Shlomo Conforti was employed by a financial services firm in the capacity of financial adviser. In the course of his duties, he entered into email exchanges with several other employees, after which he complained that he was being harassed. Senior management intervened in the escalating email exchanges, and Conforti ultimately sent an inappropriate email to the Assistant Chief Compliance Officer, which resulted in Conforti’s employment being terminated.

Conforti subsequently brought an application to the labour relations board under section 50 of the Act. Essentially, Conforti claimed that his termination was a form of reprisal against him by his employer for laying a complaint of workplace harassment under the Act.

Legal questions under review

The board addressed two main questions in its decision:

  1. Did Conforti’s termination amount to a reprisal under s. 50 of the OHSA?
  2. Did the emails Conforti received from his co-workers amount to workplace harassment as defined under the Act?

Reprisal under the OHSA

Section 50 of the OHSA is essentially a whistleblowing provision. It addresses acts of employer reprisal against employees as a result of those employees engaging in, or attempting to engage in, certain actions under, or related to, the Act:

50. (1)  No employer or person acting on behalf of an employer shall:

(a) Dismiss or threaten to dismiss a worker;
(b) Discipline or suspend or threaten to discipline or suspend a worker;
(c) Impose any penalty upon a worker; or
(d) Intimidate or coerce a worker,

Because the worker has acted in compliance with this Act or the regulations or an order made thereunder, has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations…

The reprisal provisions are unusual in that they place a reverse onus on the employer. To plead a prima facie case of a violation under s. 50, the employee has to show that two conditions have been met: 1) the employee suffered an adverse impact (e.g., experiencing or being threatened with discharge or discipline, or being penalized, intimidated or coerced); and 2) the adverse impact was the result of an attempt by the employee to invoke rights under the Act.

The board issued a useful overview of the scope of s. 50 in Dough Delight Inc., 1998 (quoted in Miller v. Tigercat Industries Inc., 2004):

Section 50 is not a mechanism by which an individual can complain to the Board about any concern over his or her health and safety in the workplace. Whatever the legitimate and serious concerns about health and safety an individual may have arising from workplace events, if those concerns do not arise in the context described by, and circumscribed by, section 50, then a complaint does not lie to this Board pursuant to that section.

The nexus between reprisal and workplace harassment post-Bill 168

In Conforti, the board began by setting out the legal context of the application as follows:

There are three bases upon which the Board can take jurisdiction under section 50 of the OHSA:

  • When a worker has “acted in compliance with the Act”
  • When a worker has “given evidence”
  • Or when a worker “has sought the enforcement” of the Act or the regulations

In the board’s view, “the latter basis is the only one that applies in the ‘typical’ harassment complaint situation as in this case.” In his application to the board, Conforti took the position that having sought enforcement of the workplace harassment provisions under the Act, he was terminated as a result. Based on the fact that Conforti was discharged by his employer, the first condition of s. 50 was clearly met.

In seeking to establish whether the second condition had been met, the board framed the question as whether “being discharged for making a harassment complaint is a violation of the OHSA”. In addressing this question, the board identified each specific legal requirement related to workplace harassment under the OHSA as follows:

a) Create a policy with respect to workplace harassment;
b) Develop and maintain a program to implement the policy with respect to workplace harassment;
c) Provide a worker with information and instruction that is appropriate for the worker on the contents of the policy and program with respect to workplace harassment.

However, the board noted that, “the language of the new amendments to the OHSA appears to specifically omit an obligation to prevent workplace harassment from further duties and obligations“, despite the fact that “new obligations were created with respect to workplace violence.” (Emphasis added.)

The board identified several examples where requirements under the Act related to workplace violence do not extend to workplace harassment, including:

  • Completion of a risk assessment
  • The right for a worker to refuse work
  • Application of the employer duties set out in section 25, the supervisor duties set out in section 27, and the worker duties set out in section 28

Under the Bill 168 amendments to the Act, an employer is only required to implement a workplace harassment policy and program and provide workers with information and instruction on both, as appropriate.

To look at it another way, the OHSA specifically gives the board the power to inquire into the situation where an employee is fired for complaining about a missing guard on a machine but does not specifically give the board the power to inquire into the situation where an employee is fired for complaining about harassment.

By not linking workplace harassment provisions to the sections on employer, supervisor and worker duties, the legislature appears to have intended that employers in Ontario are not under a legal obligation to maintain a workplace free of harassment. Further, “the OHSA provides no specific rights to a worker with respect to workplace harassment.”

The board continued:

In the case of an employee who claims that the workplace is unsafe because a machine is lacking a guard, the employee is, when complaining, seeking to force the employer to comply with the statutory obligation to ensure protective devices as prescribed in the Act are provided (section 25(1)(a)) or take every precaution reasonable in the circumstances for the protection of a worker (section 25(2)(h)).

In the case of an employee who complains that he has been harassed, there is no provision in the OHSA that says an employer has an obligation to keep the workplace harassment free.

As Conforti’s application was made on grounds unrelated to any of the three mandated workplace harassment requirements—enacting a policy, implementing a program or providing instruction to workers—the board ruled that the conduct complained of in his application was insufficient to trigger any of the provisions under s. 50 of the Act. The application was dismissed.

When does workplace harassment trigger section 50?

The reasons the legislature chose to limit the reach of the workplace harassment provisions in the Act are clearly on display in this case. If aggrieved employees could bring applications in relation to routine harassment complaints, the board would quickly become overwhelmed. This position is also reflected in a number of pre-Bill 168 amendment decisions by the board in which such applications were rejected. (See, for example, Centro Donne Inc., 1997, and Martin v. Amdahl Canada, 2000.)

The board’s decision in Meridian Magnesium Products Ltd., 1996, quoted with approval in Vogan v. Ten Star Financial Services, 2009, exemplifies the approach typically adopted in harassment cases decided under s. 50 of the OHSA:

130. The provisions of the OHSA do not clearly speak to or easily encompass “dangers” to an employee’s mental health—be they overt and unlawful harassment (sexual, racial or otherwise)—as alleged in this case, or simply conditions in the workplace which generate stress (technological change, impending layoffs, a new boss, friction with other employees, workload, etc.). Nor is it easy to accept that anything that causes “stress” is necessarily a “hazard” regulated by the OHSA.

The relevance of earlier case decisions was not lost on the board in the Conforti case. The adjudicator noted that, given the board’s historical record of decisions, “the Legislature would have been much more clear had it intended to make complaining about harassment a protected right under the Act. This is especially true given the fact that such an interpretation would likely significantly increase the Board’s caseload”.

The board’s decision in Conforti should not be interpreted, however, as suggesting that the Bill 168 amendments do not expand s. 50 remedies related to workplace harassment under the OHSA. Based on the decision in this and previous cases, a reprisal complaint filed under s. 50 would likely be accepted for review by the board in circumstances where the employer:

a)     Fails to implement and post a written workplace harassment policy and review this policy annually;
b)     Fails to implement and maintain a workplace harassment program;
c)     Fails to ensure that the workplace harassment program:

  • Includes measures and procedures for workers to report incidents of workplace harassment to the employer or supervisor
  • Sets out how the employer will investigate and deal with incidents and complaints of workplace harassment

d)     Fails to provide a worker with information and instruction that is appropriate for the worker on the contents of the workplace harassment policy and program.

NOTE: The policy need not be posted and in writing if five employees or fewer are regularly employed in the workplace.

A couple of examples may help to illuminate the apparent threshold for the engagement of s. 50 in workplace harassment reprisal cases. In a case where the information and instruction provided to an employee do not incorporate the employer’s specific workplace harassment policy and program, and the employee, in requesting such workplace-specific information and instruction, is penalized in some way by the employer, this would appear to contravene s. 50 of the Act.

The Conforti case provides another example of the dividing line between what does and does not trigger s. 50 in the eyes of the board:

If an individual complains under an employer’s workplace harassment policy and doesn’t like the way the employer handled the investigation (e.g., 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 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.

What constitutes workplace harassment under the OHSA?

The board expanded its written decision in Conforti to address the conduct characterized as workplace harassment. Section 1(1) of the OHSA defines workplace harassment as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.”

The board concluded that the two emails sent to Conforti by the compliance employees did not amount to a course of vexatious comment or conduct. It further found that the materials filed with the application demonstrated that the compliance employees did not know, nor should have known, that the comments were unwelcome.

In the context of the OHSA, the board drew a stark line between workplace harassment on the one hand and actions taken by the employer to gain compliance with workplace rules on the other:

Harassment is not the same as an employer (or employees responsible for ensuring that other employees comply with rules and regulations) ensuring that rules are complied with. No person acting reasonably could have thought the two e-mails amounted to harassment.

Summary and key insights

This case offers a number of important considerations for Ontario employers, including:

  • To amount to a course of vexatious comment or conduct, email messages (and possibly other forms of work-related communications) between co-workers would generally need to be repetitive (i.e., occur more than twice), and the sender(s) of the communication would need to be clearly shown to have awareness that the comments made were unwelcome, or had the real potential to be unwelcome.
  • Employers and those in supervisory roles have a clear right to take steps to ensure that workplace rules and regulations are complied with, and reasonable actions taken in this regard do not represent workplace harassment as defined under the OHSA.
  • The Bill 168 amendments create additional legal obligations on Ontario employers with respect to reprisal under the OHSA. Employees identifying a lapse in compliance with the Bill 168 amendments related to workplace harassment must not be penalized (e.g., terminated, disciplined, intimidated or coerced) by the employer as a result. Instead, employers must ensure that any such reported case of non-compliance is addressed in conformance with the Act without reprisal to the reporting employee.
  • In a case where the employer complies with the workplace harassment requirements under the Act and an employee complains about the way compliance was addressed and is reprimanded, the employee is not able to seek recourse through section 50 of the OHSA.

Conclusion

This is the second recent decision to offer important early interpretation of the Bill 168 amendments. The other case, Kingston (City) v Canadian Union of Public Employees, Local 109, CanLII 50313 (ON LA), involved workplace violence and the termination of an employee who uttered a threat to harm a co-worker. Seen together, the Kingston (City) and Conforti cases offer important insights for Ontario employers in navigating their legal responsibilities under the far-reaching Bill 168 amendments.

It is important to remember that the OHSA sets a minimum legal standard for employee protection. In preparing, implementing and maintaining a workplace violence and harassment program in any workplace, the employer is duty-bound (under the common law) to exercise due diligence in taking all reasonable steps to protect workers from foreseeable harm. The exercise of due diligence in many workplaces will lead an employer to take additional steps beyond those minimum standards set out in the OHSA.

David Hyde
David Hyde & Associates

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David Hyde

Security and business risk consultant at David Hyde and Associates
David Hyde, M.Sc, CPC is a security and business risk consultant, author and educator with 26 years of broad-based leadership experience. He is principal consultant with David Hyde and Associates and in this role is a trusted advisor to a number of Canada’s top corporations on operational and reputational due diligence matters. Read more
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