Often a convenient source of information, like a commuter newspaper or your favourite blog, will inspire you to dig deeper and seek in-depth knowledge on a particular topic that affects your workplace.

I had just that experience last week reading a “Workplace Law” article by Daniel Lublin in the commuter newspaper, Metro. Dan’s article is a wrap-up of important developments in employment law and provided tips on what to focus on in 2012.

Dan’s article inspired me to dig deeper into one particular issue, and here’s what I found:  Wamsley v. Ed Green Blueprinting, 2010

This decision of the Human Rights Tribunal of Ontario reinforces the legal realities that in your workplace you must have:

• A workplace harassment policy in place
• Adequate training programs for both staff and managers
• A complaint mechanism that is both reasonable and adequate

The case involves an employee’s complaint that she was patted on the bum by a third-party service provider. The incident took place on the employer’s premises, but the alleged harasser was not employed directly by the employer. He was employed by the company that serviced the company’s office photocopiers.

At the hearing (just imagine the time, money and energy involved!) the tribunal chair pointed out

• The manager handling the complaint had not received training in workplace human rights
• The employer did not have a harassment policy in place
• The employer’s representative failed to investigate the complaint reasonably and adequately

Now go back and read the details of this decision. Think of training as insurance. What is the better investment:

• A hearing that reveals all the sordid details this one does?

OR

• A half-day training session that would have taught the manager to handle to complaint properly?

Learn—don’t litigate.

Andrew Lawson
www.learndl.ca

© 2012 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

Case overview

A hospital employee faced complaints of workplace harassment from co-workers, and the hospital imposed discipline on him. The employee’s union subsequently filed a grievance with the labour relations board. The hospital retained the services of an independent outside investigator, Kevin Robinson, who was also a practising lawyer. Upon completion of the investigation, the hospital sent a letter to the employee advising him of the conclusion that he had engaged in a pattern of “bullying and/or harassing behaviour” in contravention of the hospital’s workplace harassment policy.

The grievor was told that the hospital was issuing him a written warning that harassing and bullying conduct will not be tolerated in the workplace. The hospital further advised the grievor that he would be demoted forthwith from the position of charge nurse.

The union, the Ontario Nurses Association, brought a grievance against the hospital alleging a violation of the collective agreement. The union expressed the view that the discipline was unjust and was in retaliation for the grievor’s past union activities. The union brought an application to the board for pre-hearing production of written communications and materials used in Robinson’s investigation. The hospital asserted that these communications were not relevant and, most importantly, were protected by solicitor-client privilege.

Legal questions under review

The arbitrator addressed two main questions in her written decision:

1. Does solicitor-client privilege apply in the case where a lawyer is acting on behalf of a client as a third-party investigator?
2. To what extent should written communications related to a workplace harassment investigation be made available to the grievor/union?

Solicitor-client privilege

As noted by the arbitrator in this case, solicitor-client privilege exists to enable a person to receive legal advice in a confidential manner. The hospital’s claim of solicitor-client privilege was predicated on the fact that Robinson was a lawyer. In noting that Robinson was retained by the hospital as an independent investigator, the arbitrator stated:

I see no reason to attach solicitor and client privilege to a relationship which is not that of a solicitor-client, just because one of the parties happens to be a lawyer. There are no facts before me upon which I could conclude that Mr. Robinson was retained for any other purpose than investigating the allegations against the Grievor.

In reaching this conclusion, the arbitrator stated that she saw no reason to distinguish between a third-party investigator and in-house internal investigator if the purpose for which they were retained was the same. Accordingly, Robinson’s communications with the hospital pursuant to the workplace harassment investigation were found not to be protected by solicitor-client privilege.

While not explicitly cited in this case, the arbitrator’s conclusions are in accord with the Supreme Court of Canada decision Solosky v. The Queen [1980], which states:

It is not every item of correspondence passing between solicitor and client to which privilege attaches, for only those in which the client seeks the advice of counsel in his professional capacity, or in which counsel gives advice, are protected.

In arriving at this position, the Supreme Court of Canada relied in part on Wigmore where the modern meaning of solicitor-client privilege was thus defined:

Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to the purpose made in confidence by the client are at his instance permanently protected from disclosures by himself or by the legal adviser, except the protection be waived.

The arbitrator’s conclusion on the application of solicitor-client privilege in this case is consistent with these positions in that Robinson was acting in the capacity of a third-party investigator when gathering information and writing up an investigation report, and not in his capacity as a lawyer.

Relevant test for disclosure

Both the hospital and the union petitioned the board to apply different legal tests for the disclosure of the hospital’s investigation file and related materials in this case. Somewhat predictably, the hospital proposed a narrow test while the union put forward a more expansive test.

In deciding to apply a narrower test for disclosure, the arbitrator concluded:

I observe that while the parties disagree as to the applicable test for disclosure, I have, without making any determination in that respect, applied the more narrow test of relevance advocated by the Employer.

The union’s right to access the full investigation report

The union’s original request to view the workplace harassment investigation report in full was rejected by the hospital on the grounds that the investigation report as a whole is not relevant, as the hospital is not relying on the report in the arbitration. The hospital also submitted that it would not be calling Robinson as a witness, but would instead call each of the individuals involved in the harassment incidents.

The arbitrator found that the hospital had already relied upon the investigation report in formulating a course of discipline and issuing a written warning to the grievor. As noted by the arbitrator:

The letter written to the Grievor clearly references [the investigation report] as the basis for the Hospital’s decision to impose discipline in this case. There is no indication the Hospital conducted its own investigation and was basing the disciplinary action on knowledge it gained separate and distinct from the investigation.

The union’s right to access additional documents related to the investigation

The union alleged that the hospital’s actions in disciplining the employee were motivated by the employee’s past union activities. In an effort to prove this position, the union requested:

• Production of all communications and correspondence related to the full range of incidents relied upon by the employer in establishing the veracity of any allegations of harassment
• Access to documentation in the personnel file of the chief complainant pertaining to discipline imposed following a previous complaint in which the employee was involved

In granting the union’s requests, the arbitrator expressed the view that the union was entitled to consider all actions taken by the hospital that could show whether any decisions were motivated in some way by the employee’s past union involvement.

The arbitrator went on to state:

The Union also seeks production of the personnel file and employment record of the chief complainant, C.B., in this case. The Union notes that part of its case is an assertion that C.B.’s complaint in this case is motivated by an earlier complaint against C.B., which led to the discipline of C.B.. The Grievor was involved in that complaint. The Union clarified it seeks only the documents which relate to that discipline. I am of the view those documents are relevant, as they directly speak to the workplace and interpersonal history between C.B. and the Grievor.

Case disposition

The arbitrator ordered the hospital to provide the following documentation to the union:

• All emails, notes of conversations and other correspondence between Robinson and the hospital’s human resources personnel, and the VP of Surgery and Maternal/Child Care Centres, relating to Robinson’s role as investigator of the incidents
• All documents in the personnel and employment file of C.B. relating to the discipline imposed in respect of the complaint in which the employee was involved
• All communications and correspondence relating to the incidents in the case at hand

Summary and key insights

This case offers a number of important considerations for employers and lawyers.

It appears doubtful that a lawyer retained for the purpose of investigating a complaint of workplace harassment or violence can claim the protection of solicitor-client privilege.

In light of the conclusions reached in this case, employers would be prudent to clearly demarcate and separate the functions of investigative analysis and legal analysis. Common sense would seem to dictate that the investigation findings should be collected, collated and analyzed as a distinct first step. In the event that legal analysis is required, the subsequent engagement of internal or external legal counsel to offer legal interpretation and guidance would more distinctly fall under the protection of solicitor-client privilege.

This finding raises important questions about the extent to which the solicitor-client privilege protection can be applied to other corporate fact-gathering initiatives undertaken by lawyers, such as the conduct of a workplace risk assessment (as required in Ontario under the Bill 168 amendments to the Occupational Health and Safety Act).

Employers should be prepared to disclose investigation reports and related documentation to a grievor and his or her union representative(s) in the event the reasonableness of actions taken by the employer following the investigation are in dispute. This may include not only the full investigation report, but details of communications between the investigator and other workplace parties involved in the investigation (e.g., human resources, supervisors, managers, etc.).

It is worth noting that, despite applying the narrower test for disclosure advocated by the hospital, the arbitrator came to the conclusion that, on the facts of this case, the union was entitled to access a wide range of communications and correspondence connected to the harassment investigation conducted by the employer.

Conclusion

The arbitrator’s findings in this case should be considered in the context of the growing codification of the employers’ obligation to prevent, control and respond to workplace harassment. In Ontario, for example, the Bill 168 amendments to the Occupational Health and Safety Act mandate specific requirements to be followed by employers including a responsibility to investigate incidents and complaints of harassment.

The inevitable result of more far-reaching workplace harassment legislation within some Canadian jurisdictions is an increase in the overall number of harassment in the workplace complaints. As a corollary, employers are forced to conduct an ever-increasing number of harassment investigations and in so doing, must carefully navigate new laws such as the Bill 168 amendments.

This case provides important new considerations that Canadian employers should interpret and apply with appropriate care and attention to their workplace investigations process.

David Hyde
David Hyde & Associates

© 2011 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

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

© 2011 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

Image: http://theworrywart-zachdills.blogspot.com/

“I get offended when someone refers to me as ‘dear’. I feel that it is condescending and even sexist.”

The above comment was expressed by one participant who was later mocked by some of the other participants for expressing this point of view.

“If that’s how a person was raised, particularly if they are older, you shouldn’t be offended by that. It’s a generational thing.

“Calling someone ‘dear’ is a term of affection; they don’t mean anything by it.”

“We have to stop being so over-sensitive.”

Another participant expressed surprise to have been given a quantity of alcohol as a prize in an office contest. This worker’s family doesn’t drink alcohol, and the worker wondered if this was appropriate in the workplace. The worker did not claim to have been offended and certainly did not claim to have been harassed.

Another participant responded by saying, “Just give the alcohol to someone who drinks. You don’t need to be so sensitive about it.”

I pointed out to the group that, as a recovering alcoholic, I am offended when someone assumes that everyone else enjoys alcohol and doesn’t have the courtesy to consider others before deciding to serve alcohol at a workplace function. I would be equally offended if I was allergic to peanuts or cologne and others used either of them without considering the needs of their colleagues first.

Does that mean that you are harassing a person when doing these things and that you should be sent home without pay?

Hardly.

But then the workshop conversation was not exactly about “harassing” per se. The conversation was about respect and about considering our attitudes and actions from the perspective of someone else.

I had asked people to share their experiences and feelings and to give examples of areas where they may be feeling disrespected in the workplace. I had intended to stimulate conversation; I very nearly started a war!

All of a sudden everyone was talking, some loudly, and expressing their various points of view. Mostly they were expressing frustration with the “over-sensitivity” of their co-workers.

I was shocked. Despite facilitating workshops on workplace discrimination and harassment prevention for as long as I have, I am always surprised by the pent-up frustration, and even anger, that participants display, when other participants talk about things they find offensive.

I dream of the day I hear a participant respond to colleagues’ comments by saying, “Your perspective is interesting; I never thought of it that way before.”

I would even be encouraged by something like, “I respect your point of view, but I see it differently. I guess we need to agree to disagree.”

“The starting point”, I say during the introduction of my workshops, “the starting point to workplace harassment prevention is mutual respect.”

It surprises me then to see some participants charge forward with their own agenda without regard, indeed without respect, for the perspectives of others.

This situation makes it clear that this workplace is definitely in need of this training!

How can we prevent the horrendous impact of workplace harassment when we have such a hard time listening to others without becoming so defensive?

The intent of Ontario’s Bill 168, the workplace violence and harassment provisions of the Occupational Health and Safety Act and the Human Rights Code is to prevent, on one hand, disrespect for who and what we all are.

On the other hand, the intent of these instruments of law is to prevent stress, illness, lost time, injury and even death. Is that worth talking about?

Andrew Lawson

www.learndl.ca

© 2011 First Reference Inc. All Rights Reserved. | Permalink | 2 comments |

Image: http://winecountry.it/assets/articles/sundance/

“I am at a party on my day off and a coworker hurls racial insults at me or makes sexual suggestive comments to me.”

• Am I protected by my employer’s harassment and discrimination policy?
• Likewise, if I am the one doing the hurling or suggestive commenting, am I subject to discipline under my employer’s policies?

I am asked the above questions frequently by workers attending my harassment and discrimination prevention workshops. The simple answer is: it depends. Let’s look at some examples:

Swearing at co-worker not just cause for firing

The New Brunswick Court of Queen’s Bench considered the effect of off-duty behaviour in Legere v. YMCA-YWCA of St. John. The employee in this case saw a co-worker in public and rebuked her with very strong language. The employer dismissed the employee for cause claiming that her behaviour was expressly forbidden by written policy of the employer.

The court ruled that the employer did not have just cause to terminate this employee. The court found the employee:

• simply asked, although in a forceful way, to be left alone;
• did not add a personal insult to the remark;
• was exercising her right to freedom of expression.

This case illustrates that the courts may not uphold policies of the employer that are found to be unreasonably intrusive or restrictive.

Loss of confidence in worker is just cause for firing

In a somewhat similar case the Supreme Court of Canada came to a different conclusion. In Ross v. New Brunswick School District No. 15 the court found the employer did have just cause for termination because:

• the employee, a teacher, published racist statements over a period of years.
• this behaviour contributed to a “poisoned environment” in the workplace
• there was a loss of confidence in the teacher and in the system.

Ask yourself these questions:

1. Is the behaviour harmless self-expression or a deliberate personal insult?
2. Is the behaviour an isolated event or does in happen regularly, over a long period of time?
3. Is the behaviour likely to cause harm to your organization?

Unionized workplaces

For those readers working within a unionized environment, some guidelines established in the case of Millhaven Fibres[1] illustrate whether or not the employer has the right to invoke a policy against employees during their off-duty hours:

1. Did the worker’s conduct harm the employer’s reputation or product?
2. Did the worker’s conduct render him unable to perform his duties as an employee in a satisfactory manner?
3. Does the worker’s conduct lead to a refusal, reluctance, or inability of other employees to work with him?
4. Has the worker been guilty of a serious breach of the Criminal Code, and is this conduct injurious to the general reputation of the employer and its employees?
5. Has the worker’s conduct made it difficult for the employer to manage its operations efficiently and to direct its workforce efficiently

Andrew Lawson
www.learndl.ca

[1] Millhaven Fibres  Ltd.,  Millhaven Works,  and  Oil,  Chemical and  Atomic  Workers International,  Local 9­670  (1967),  1(A) Union­Management  Arbitration Cases  328 (Anderson)

© 2011 First Reference Inc. All Rights Reserved. | Permalink | 4 comments |

A recent labour arbitrator’s decision—to uphold the City of Kingston’s right to terminate a 28-year employee for issuing a verbal threat against a co-worker—was based in large part on the arbitrator’s view that “the classification of threatening language as workplace violence” under the Occupational Health and Safety Act represents a “clear and significant change” to the law in Ontario.

In a detailed 68-page decision, which represents some of the very first quasi-judicial interpretation of the Bill 168 amendments to the OHSA, and which should be of interest to employers all across the province, the arbitrator found that the amendments change the way in which employers must now respond to verbal threats. In short, because the uttering of a threat of violence now legally constitutes an act of violence, employers can no longer dismiss such behaviour as mere talk.

Case overview

A labour arbitrator found that a public sector employee had made a death threat against a union representative in the workplace. After a lengthy investigation, the employer terminated the employee, in part because of the employer’s obligation under the OHSA to take all reasonable steps to maintain a safe workplace.

The employer’s position was that the Bill 168 amendments signalled that threats of violence are simply unacceptable.

The union argued that Bill 168 is a new piece of legislation that should not alter the need for the employer to adopt a proportional response to employee misconduct.

The arbitrator began her reasons by stating, “The Bill 168 amendments to the Occupational Health and Safety Act have changed the law of the workplace in a significant way. … an employer must protect a worker from a hazardous person in the workplace.”

The arbitrator went on to identify four significant ways in which the Bill 168 amendments have altered the legal landscape in Ontario.

1. Use of inappropriate language in the workplace

The amendments clarify the way in which workplace parties, adjudicators, arbitrators and judges must think about incidents involving the inappropriate use of language in the workplace. “The Amendments make it clear that language that is vexatious and unwelcome is harassment, and very serious in its own right. But language that is made in direct reference to the end of a person’s life or that suggests impending danger, falls into a category of its own. This is not just language, it is violence.”

Further, “Where an alleged threat is reported, the incident falls into a new category. The parties must address the allegation as one of violent misconduct. It must be addressed as a very serious allegation.” It is the utterance of the words that constitutes workplace violence. “There need not be evidence of an immediate ability to do physical harm. There need not be evidence of intent to do harm. No employee is required, as the receiver of the words, to live or work in fear of attack.”

2. Employer and worker responsibilities

Bill 168 changed the way that both employers and workers must react to an allegation of a threat of violence. Employers cannot trivialize threats in the workplace and must take steps to ensure such actions are reported, investigated and addressed. As the arbitrator observed, ”A worker who becomes aware of a danger is required to report the incident. … The utterance of a threat in the workplace requires that the workplace parties stop cold. They must report. They must investigate. They must assess the existence of real danger.”

The employer must act wisely, objectively and fairly. To avoid overreacting to workplace threats, the employer ”must investigate allegations of workplace violence with a full and fair approach, assessing objectively verifiable fact, and ensuring that decision-making in responding to the incident is informed, reasonable and proportionate.”

Employers must not assume that the sum of arbitral jurisprudence is less relevant under the amended law. The Bill 168 amendments do not “make terminations automatic or necessary if the misconduct amounts to workplace violence.”

In the present case, the arbitrator found that the employer had investigated the allegations with care and attention and had assessed a range of factors in determining whether termination was the appropriate course of action.

3. Seriousness of workplace threats

In assessing the reasonableness of termination as a course of action following a workplace threat, the arbitrator identified the need to place additional weight on the seriousness of the incident in the wake of Bill 168. By statutory definition, threats now fall under the category of workplace violence. Arbitrators must weigh this fact carefully against other factors.

4. Workplace safety

In considering the reasonability and proportionality of discipline when a threat is reported, employers must ask, “To what extent is it likely that this employee, if returned to the workplace, can be relied upon to conduct himself or herself in a way that is safe for others?”. The arbitrator stated, “The employment relationship will be incapable of reparation, if the offending employee is likely to render the employer incapable of fulfilling its obligation to provide a safe workplace under the Occupational Health and Safety Act.”

The arbitrator made it clear that the grievor was “entitled to thoughtful consideration, particularly in light of her very long years of service, of whether any other form of discipline will serve the goals of imposing appropriate and proportionate discipline, while ensuring a safe workplace.”

The arbitrator concluded that the grievor had not intended to actually end the life of the person she threatened. Rather, the arbitrator viewed the actions of the grievor as venting her frustration and anger toward the other workplace party. Nonetheless, “the threat did cause actual harm.” The subject was “provoked to extreme anger”, “shaken”, “upset”, “nervous” and “fearful”. “The emotional impact of a death threat is considerable, and constitutes actual harm upon its victim.”

Conclusion

This landmark decision holds a number of important lessons for Ontario employers, including:

• The utterance of a threat of violence—for the purpose of intimidation—constitutes an act of violence
• This is true regardless of whether or not:
  • The person issuing the threat has any intention to follow through
  • The person issuing the threat has any ability to follow through
  • The person receiving the threat feels afraid
• A worker who hears another worker issuing a threat must report the incident
• Employers cannot ignore, dismiss or trivialize reported threats and incidents
• Reported incidents must be thoroughly investigated and addressed
• When considering how to discipline an employee for uttering a threat, an employer must:
  • Place extra weight on the seriousness of this sort of misconduct
  • Assess the likelihood that the misconduct could or would be repeated if the worker remained in the workplace
  • Act in a manner which gives due consideration to the safety of other workers
• In some cases, termination of the employee will be a reasonable and measured response

The Bill 168 amendments have been law in Ontario for over a year now, and we are just beginning to find out how the provisions under this new set of rules are going to be applied. Employers need to keep abreast of these legal developments as they unfold.

The case at hand was adjudicated in the context of the Ontario Labour Relations Act. The arbitrator’s findings are not binding upon judges deciding cases brought under the Occupational Health and Safety Act. However, the case represents an important milestone in that it is the first, in-depth judicial or quasi-judicial review of the Bill 168 amendments. It would seem both likely and plausible that the arbitrator’s findings in this case foreshadow what lies ahead as more Bill 168 cases are decided.

The arbitrator’s statutory interpretation of Bill 168 in this case should serve as a rallying call to Ontario employers. Despite the cogent rationale for developing a comprehensive workplace violence prevention program, a number of employers have not taken the necessary steps. Workplace violence initiatives are all-too-commonly seen as a distraction from “business as usual” and the associated financial and human resource costs of planning are often questioned.

A growing body of research suggests that organizations that are not prepared to address the risk of workplace violence face severe legal, reputational and operational liabilities. The business case for making workplace violence prevention a priority is at hand, and the call to action has gone out to HR professionals, legal officers, security and safety managers, corporate executives and boards of directors. Is your organization answering the call?

David Hyde and Brian Robertson
David Hyde and Associates

© 2011 First Reference Inc. All Rights Reserved. | Permalink | 2 comments |

Yosie wrote about it on Slaw.ca last fall.

The case is a few months old now, but no less important in its implications for employers. Terminations based on employees’ use of social media (aka, “Facebook firings”) remain rare in Canada, but you can be sure the numbers will grow. It is likely that there are several such cases before Canadian courts right now.

The primary defence in such proceedings is a strong, clear and consistent social media policy. When preparing your policy, consider these provisions:

• Explain what social media is and what the policy covers
• Remind employees about the nature of social media
• Include non-work usages of social media
• Remind employees that what they publish reflects both on themselves and the employer
• Prohibit the violation of laws
• Prohibit the violation of employer policies
• Prohibit speaking on behalf of the employer
• Advise that revisions may be requested
• Include specific rules regarding the use of social media in a business capacity
• Advise that the employer will monitor employee usage of social media while at work, if applicable
• Advise of the consequences of a breach

See the link above for more detail, and find more about how social media are affecting the workplace here on the blog.

© 2011 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

So, it makes sense that HR professionals, managers and business owners are educating themselves in order to comply with the law and protect their organizations from legal liability. BUT, how are they going about this educational process? I was thoroughly shocked at something I read recently via an online discussion forum on the topic of seeking information about workplace bullying.

A person who self-identified including their name and status as an HR professional asked fellow readers of the forum for advice on how to deal with senior executives who bully subordinates in the workplace. The person made it clear that this was an actual challenge they were currently dealing with at a specific workplace that was also clearly identified within the poster’s online profile.

I ask you to ponder a moment the implications of the situation described above.

The first step in dealing with any form of workplace harassment (including top-down bullying of subordinates) is a program that provides employees with a clear avenue of complaint. The program must include training on how to initiate the complaint process and, if done well, will educate workers that the law protects them from reprisal should they exercise their rights under the law.

This information is readily available via a simple online search—anonymously. When we put our photos, names, places of employment out there for the entire world to see, we must be prudent about the information we share—even if only by implication.

A brief understanding of Internet defamation or cyber-libel, by Yosie Saint-Cyr was published on this blog last month. I highly recommend a review of Yosie’s post.

Learn don’t litigate

• Do educate yourself and your organization about prevailing law and best practices by asking questions and networking with other professionals
• Do not divulge private, confidential or potential defamatory information on a public forum

Andrew Lawson
www.learndl.ca

© 2011 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

Image: metromonctonnews.com

Two seemingly unrelated, yet interesting, events occurred this month that made me think about occupational health & safety. Of course, my friends and family say that the evening breeze will cause me to think about some employment law related risk! Anyway—what do you suppose is the commonality between the First Reference 12^th Annual Ontario employment law conference and the Stanley Cup playoffs?

It was my privilege to attend the former and my horror to witness the mayhem that occurred in the streets of beautiful Vancouver following the final game of the latter. Among all of the media, including social media, attention that followed the Vancouver riots was an article published by thestar.com about people being fired or losing commercial endorsements after being identified rioting in social media generated photographs. There are hundreds of ongoing online debates on the merits of being fired for off-work behaviour.

The question of whether I can be fired for what I do away from work is a complicated one to answer and one that requires more time for legal research than what I have available prior to my deadline for this posting. However, Ontario employers must, under certain conditions, provide information to workers about another worker who poses a threat in the workplace due to having a history of violent behaviour. Please see Occupational Health & Safety Act, s. 32.0.5 (3).

“Workplace violence” is defined in the Act as being of a physical nature but “violent behaviour” is not defined thus leaving this determination up to individual judgment. So here’s a question to ask yourself—what are your legal obligations under Ontario law when you see an online photo of your worker committing violent acts?

This brings me to the other interesting event that occurred in the last month—the First Reference employment law conference. Among the many informative presentations was one entitled, “Social networking and internet abuse in the workplace” by Kelly McDermott of Stringer Brisbin Humphrey.  Kelly did a great job of educating us on how to legally monitor the online activity of workers and she said something like: Notwithstanding privacy settings [on social media applications] everything posted on the internet eventually becomes public.

I can post a photo online and control access to it with my privacy settings. That doesn’t stop someone from copying that photo and distributing it. Likewise, photos can be snapped on a cell phone and posted on public websites instantly—there is no privacy anymore!  Whether you were intended to view a photo or not, what is your legal obligation once you do?

Preventing workplace harassment and the resulting violence that is delivered over the internet in a huge challenge for the twenty first century employer. However, responding to information received via the Internet, whether intentional or not, is an obligation the modern employer must also take seriously.

Andrew Lawson
Learn don’t Litigate

© 2011 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

In addition, employers are required to conduct training on these policies to meet their due diligence.

At a recent HRPA panel discussion in Halton, Scott Hanville from the Ontario Ministry of Labour (MOL) shared the following details regarding compliance with the workplace violence and harassment provisions under the OHSA:

• When the MOL inspections started, they found non-compliance with all parts of Part III.0.1 (violence and harassment) across all sectors and in both large and small workplaces. Some workplaces had policies and programs in place already for workplace harassment and workplace violence but needed to review and update them to comply with section 32.0.1 of Part III.0.1.
• Eighty percent of large workplaces and 20 percent of small workplaces were in compliance. The most common non-compliance order issued by the MOL involved risk assessments and training.

You can learn more about what’s happened since Bill 168 came into force, and obtain practical tips to get you in compliance if you are struggling with the issues. You know what they say: it’s never too late to become compliant; so don’t wait for an incident of violence and harassment to occur in your workplace to be forced to react, or to face a fine for violating the law. At the 2011 Ontario Employment Law Conference, the session on Bill 168 – A year in review will provide you with:

• The essential elements of a good violence and harassment policy
• Tips for conducting your mandatory annual review
• How to effectively respond to and investigate incidents and complaints
• Recent jurisprudence in the courts, arbitrations and at the Ontario Labour Relations Board

We invite business owners and managers who are grappling with workplace and employment law issues in the province of Ontario to attend the conference. Register for the 2011 Employment Law Conference—and Learn the latest!

Yosie Saint-Cyr
First Reference Human Resources and Compliance Managing Editor

© 2011 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |