OLRB rules that Ontario employer liable for failing to comply with Bill 168

March 19, 2013 Simon Heath, BA, MIR, LLB, Heath Law Health and Safety, HR Policies and Procedures, Human Resources, Human Rights, Union Relations

The Ontario Labour Relations Board (“OLRB”) has recently found a Company to be in breach of Ontario’s Occupational Health and Safety Act (“OHSA”) for failing to comply with its duties under the workplace violence and harassment provisions of the Occupational Health and Safety Act (section 32) (formerly Bill 168). This OLRB’s decision in LIUNA, Local 506 v. Pro-Cut Concrete and Cutting 2013 CanLII 1240 is a reminder to all employers to ensure they have implemented the appropriate policies to be in compliance with the OHSA.

In June 2010, Bill 168 became law in the Province of Ontario by amending the OHSA by imposing express obligations on employers to prevent workplace violence and harassment. Among other things, the law required employers with five or more employees to:

• Implement workplace policies that addressed workplace violence and harassment with an internal complaint and investigation procedure;
• Conduct risk assessments of the workplace;
• Develop and implement Workplace Violence and Harassment Programs (i.e. procedures to employ if instances of workplace violence and/or harassment occur); and
• To provide appropriate training to managers and employees.

In the Pro-Cut Concrete decision, the Union filed a construction industry grievance with the OLRB alleging that the Company had committed numerous breaches of the OHSA. Specifically, two bargaining unit members alleged that the Principal of the Pro-Cut Concrete had physically assaulted one union member and threatened physical violence and death against the other.

The Union alleged that the Company had completely failed in its obligations under Bill 168 to implement violence and harassment policies, to conduct a proper risk assessment and to provide training to its employees on how to address violence and harassment at the workplace. The Union sough full compensation from the Company including $50,000 in punitive damages and $50,000 in damages for mental distress and $50,000 in damages for injury to dignity, feelings and self-respect for each of the two Grievors.

It is noteworthy that the Company did not file a response with the OLRB so that it could participate in the grievance.

The OLRB reviewed the limited information in the Union’s grievance and made the following rulings:

• The Company had breached the OHSA for failing to implement a written policy with respect to workplace violence and harassment;
• The Company failed to develop and maintain a program on workplace violence and harassment;
• The Company failed to provide training to its employees.

However, the OLRB ruled it did not have the jurisdiction to award “punitive damages”. The OLRB then ruled that it would hold one day of hearing so that it could properly assess the Union’s additional claims for financial compensation and remedies.

This case is an excellent reminder to all employers in Ontario, unionized or non-unionized, to ensure that they have complied with the obligations set out in Bill 168, to prevent violence and/or harassment from occurring in your workplace.

Simon Heath LL.B, M.I.R.
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Simon Heath, BA, MIR, LLB, Heath Law

Employment Lawyer and principal at Heath Law, Employment Lawyers

Simon Heath, BA, MIR, LLB, is the Principal of Heath Law, Employment Lawyers in Mississauga, Ontario. Simon represents both public and private-sector employers and employees (unionized and non-unionized) at all stages of the employment relationship with a focus in the areas of employment law, labour law and human rights law; these representations are made at all levels of courts and all administrative tribunals. Read more

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