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Bill 168 Update: OLRB Will Not Hear Harassment-Reprisal Complaint Under OHSA

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In previous posts, we reported that the Ontario Labour Relations Board had expressed doubt about whether it has jurisdiction to hear a complaint under the Occupational Health and Safety Act that an employee suffered reprisal for alleging workplace harassment, but that the OLRB would hear a reprisal case alleging that the employer had neglected its obligations under Bill 168.

A Vice-Chair of the OLRB has now decided that the OLRB has no jurisdiction to hear a complaint under the OHSA that employee suffered reprisal for raising a harassment issue with his or her employer.  The decision, dated November 18, 2011, is called Harper v Ludlow Technical Products Canada Ltd.

Of course, if the employee claims that the harassment was discriminatory on the basis of sex, race, religion and other human rights grounds, the employee may still file a reprisal complaint with the Human Rights Tribunal of Ontario under the Human Rights Code

A reprisal complaint under the OHSA must allege that the employee suffered reprisal – such as discipline or discharge – for acting in accordance with the OHSA or seeking to have the employer comply with obligations under the OHSA.  However, the OLRB reasoned, OHSA does not impose an obligation on employers to eliminate harassment or even to follow the employer’s harassment policy; rather, the OHSA only requires employers to implement a harassment policy and provide employees with “information and instruction” on the policy.   It therefore appears that, for the OLRB to consider a reprisal complaint under the OHSA, it must be based on the employer’s failure to implement a harassment policy or provide employees with “information and instruction” on it. 

Employers will welcome this decision, as it requires employees to address harassment complaints internally under the employer’s own policy.  Employees may not resort to the OLRB – at least not under the OHSA – when employees are unhappy with the employer’s handling of the harassment complaint process.

 The decision may be read at: http://canlii.ca/en/on/onlrb/doc/2011/2011canlii73172/2011canlii73172.html