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Illegal for Harassment Program to Allow for “Preliminary Assessment”, Early Dismissal, Employee Arguing at OLRB

A provision in a harassment program allowing for a preliminary assessment of complaints, rather than an investigation,  and for early dismissal, violates the Occupational Health and Safety Act, an employee is arguing before the Ontario Labour Relations Board.

The employee is relying on section 32.0.6(2) of the OHSA which requires that a harassment program “set out how the employer will investigate and deal with incidents and complaints of workplace harassment”.

The employee appealed a Ministry of Labour inspector’s refusal to Order the employer to revise its harassment program to correct what the employee argued were inconsistencies with the requirements set out in Bill 168. That Bill amended the Occupational Health and Safety Act to add provisions on workplace violence and harassment.

The OLRB decided that the employee’s appeal could proceed as it addressed whether the program’s language was sufficient to comply with the Occupational Health and Safety Act.

One expects that a “preliminary assessment” of a harassment complaint will, in appropriate simple cases, constitute an “investigation” under the OHSA.  The OHSA does not specify what the investigation must look like or how long it must take.

Nevertheless, this case is a reminder to employers that a workplace harassment program must have all of the contents required by the OHSA, including setting out “how the employer will investigate and deal with” harassment complaints.

Abick v Ministry of Government Services (Ontario Government), 2013 CanLII 76546 (ON LRB)

Illegal for Harassment Program to Allow for “Preliminary Assessment”, Early Dismissal, Employee Arguing at OLRB

Wave of Harassment Cases Coming to OLRB? New Decisions Cause Concern

May an employee, unhappy with how he or she was treated after filing a harassment complaint with the employer, turn to the Ontario Labour Relations Board for a remedy?  Up until recently, the answer appeared to be “no”. Two recent decisions of the OLRB suggest otherwise.

In a November 2013 decision called Ljuboja v Aim Group Inc., Jesse Nyman, a Vice-Chair of the OLRB, rejected earlier OLRB decisions and decided that an employee may complain to the OLRB where he or she has suffered a reprisal for filing a harassment complaint with the employer.

In a decision called Murphy v The Carpenters’ District Council of Ontario, decided on January 23, 2014, another Vice-Chair of the OLRB, Brian McLean, somewhat reluctantly agreed to follow Vice-Chair Nyman’s decision:

“At the time of the hearing of this matter, there had been no settlement in the Board’s jurisprudence regarding whether the making of a harassment complaint constitutes the exercise of a right under the OHSA (see Investia, 2011 Can LII 6089 and Kazenel v. Citi Cards Canada Inc., 2012 Can LII 9582 etc).  In a decision issued after the hearing in the matter before me was completed, the Board (differently constituted) rejected the Investia reasoning and found that the making of a complaint under an employer’s harassment policy constitutes seeking the enforcement of the Act (see Ljuboja v. A.I.M. Group Inc., 2013 CanLII 26528).  While I have some difficulty with the reasoning in that decision, I recognize that it is within a range of possible results and in the interests of consistent decision making regarding the Board’s interpretation of the OHSA, I accept it.”

These two recent decisions are concerning.  The language of the Occupational Health and Safety Act suggests that harassment complaints are to be dealt with internally – by the employer and employee – and not to be brought to the OLRB.  The OHSA language suggests that only if an employer has not implemented a harassment policy and program, or not ensured that the program contained the contents required under the OHSA, failed to post the policy, or failed to provide “information and instruction” to employees on the policy and program, may an employee complain to the OLRB.  Put another way – and this is often misunderstood - the OHSA does not place a legal obligation on employers to prevent harassment, so the OLRB has no authority to hear a complaint that the employer failed to prevent harassment or did not handle a harassment complaint properly.

The two recent decisions effectively permit employees, unhappy with the result of a harassment complaint, to allege “reprisal” and bring the case to the OLRB.  If the law indeed allows that, one is concerned that the OLRB will receive a wave of such complaints that should be dealt with internally.

Of course, as before, complaints dealing with harassment because of race, gender, sex and other prohibited grounds of discrimination under the Human Rights Code may be brought to the Human Rights Tribunal.  The OLRB decisions do not change that.

We will continue to monitor the caselaw and provide updates on this blog.

Wave of Harassment Cases Coming to OLRB? New Decisions Cause Concern

Backhoe Operator Swings Worker Around “Four Full Rotations”, Convicted of Criminal Assault

In a bizarre case, a backhoe operator has been convicted of assault under the Criminal Code after he tried, in a fit of rage, to throw a co-worker off the backhoe by rotating the machine four full rotations while the worker held on to a railing as his feet were flying free of the machine.

The altercation happened after the worker tried to confront the backhoe operator for coming into contact with his father’s truck.  It hadn’t helped that the worker had also complained about the operator’s operation of the backhoe on the previous day.

The worker testified that he approached the backhoe while it was loading a truck, and tried unsuccessfully to get the operator’s attention.  He then opened the backhoe door and yelled at the operator, after which an altercation ensued.  The worker said he fell onto the tracks of the machine, and got up and held the railing.  The operator then rotated the machine four full rotations, with the worker holding on the the railing with his feet flying free.  The worker eventually fell off and landed on the ground. He was unhurt.

The worker said that he lost his hat, which the operator started “stabbing” with the bucket of the machine.  A co-worker wisely persuaded him not to fetch his hat.

The court found the backhoe operator guilty of criminal assault.  The operator’s version of what happened was not credible, but the worker was generally credible, although both of them had been “immature”.

This case demonstrates that workplaces are not immune from the application of the criminal law. Where an employee’s workplace conduct violates the Criminal Code, the police may proceed with charges.

R. v. Schultz, 2014 ONCJ 9 (CanLII)

 

Backhoe Operator Swings Worker Around “Four Full Rotations”, Convicted of Criminal Assault

Attack on co-worker who warned of unsafe behaviour gets employee 4 years in prison

An employee who attacked a coworker who warned of safety issues, has been sent to prison for four years.

CBC News reported that the employee was training a coworker on the use of heavy equipment, and that after the coworker warned that the employee was standing in an unsafe place and asked him to move away from the heavy equipment, the employee punched the coworker in the head several times, knocking him to the ground.

The employee then kicked the coworker in the head repeatedly with a steel-toed boot.

The coworker sustained serious injuries during the episode.  He suffered a stroke, has impaired speech and impaired cognition, and is partially paralyzed.

This case illustrates that workplace violence is not only a workplace issue, but can also result in police investigations, criminal charges and imprisonment.

The CBC report may be accessed here.

Attack on co-worker who warned of unsafe behaviour gets employee 4 years in prison

“Half-hearted and insensitive” response to sexual harassment complaint, flawed investigation, results in $25,000 damage award

A recent case illustrates the importance of conducting a careful, sensitive investigation of sexual harassment complaints.  An employer’s “unpardonable” response to a sexual harassment complaint has resulted in an arbitrator’s rebuke and $25,000.00 in damages.

The employee was the only female inspector with the Hamilton Street Railway, the City of Hamilton’s public transit service.  She filed a complaint with the City alleging that her supervisor made a derogatory comment and had engaged in inappropriate conduct for more than two years. The City reported that the supervisor had been dismissed with a severance package.

The employee testified about a number of incidents of harassment, including: she had received a number of “pornographic” e-mails from her supervisor and had asked him to stop, but he merely chuckled;  her supervisor had attempted to massage her shoulders; and he called her an “Irish skank”.

The arbitrator stated that she had “no difficulty” accepting that the supervisor’s conduct was sexual harassment.

The arbitrator decided that the City had not treated the complaint seriously, dealt with the complaint promptly and sensitively or investigated it properly, because:

-City managers did not contact the City’s “Human Rights Specialist” immediately, as required by the City’s “harassment and discrimination resolution” policy

-the managers “left the burden of dealing with the matter” on the employee

-the managers did not appreciate the employee’s particular vulnerability in the workplace, the power imbalance, or the impact it might have had on her

-the City did not “recommend and facilitate” separating the employee from her supervisor in the workplace after she filed the complaint

-the investigator failed to interview witnesses to some of the incidents, effectively leaving them unresolved

-the requirements of the City’s own “resolution procedure” were not followed in that there was no written report and the City did not report back to the employee on remedial actions, and there was no evidence that remedial actions were ever taken

-the City accused her of fabricating e-mails

The arbirator found that the City’s response to the employee’s harassment complaint had been “half-hearted and insensitive”.

The arbitrator ordered the City to pay $25,000.00 in damages, plus interest, to the employee for the discrimination and harasment that she had suffered.  The arbitrator also ordered the City to retain legal counsel or a consultant having expertise in human rights to evaluate the City’s “It Starts with You” program and provide human rights and discrmination and harassment training including in “the principles of a good investigation”.

City of Hamilton v Amalgamated Transit Union, Local 107, 2013 CanLII 62266 (ON LA)

“Half-hearted and insensitive” response to sexual harassment complaint, flawed investigation, results in $25,000 damage award

Fired Employee Failed to Prove that Depression, Harassment Drove him to Fight: Court

An employee who was fired for fighting after being harassed, did not prove that his harassment or depression caused him to fight. Therefore, the Human Rights Tribunal of Ontario was wrong to find that his firing was discriminatory, the Ontario Divisional Court has ruled.

The employee, Lombardi, had been diagnosed with hypothyroidism and depression.  He had suffered verbal abuse from a co-worker who also sent text messages with homophobic slurs.  Later, Lombardi got into a fist fight with another co-worker.  The employer fired Lombardi, concluding that he had started the fight.  Lombardi filed a discrimination application with the Human Rights Tribunal of Ontario.  He claimed that the fight was at least in part a reaction to being harassed because of depression, perceived obesity and perceived homosexuality.  The Tribunal agreed.  The employer challenged the decision in court.

The court decided that the Tribunal had made only a “bald statement that the fight was at least in part a reaction to the harassment.”  Lombardi had the onus of proving a link between the harassment or discrimination and the fight, but he had failed to prove the link.  The court stated,

“Given the evidence as to Mr. Lombardi’s responsibility for starting the fight, the lack of any explanation to the Employer about the impact of the harassment, the lack of any medical evidence relating to mental distress and given the seriousness of the misconduct, the conclusion that the dismissal was discriminatory was unreasonable, as the adjudicator failed to show why she reached that conclusion.”

The court sent the matter back to the Tribunal for a new hearing on whether the dismissal was discriminatory, as well as whether the $20,000 damage award for harassment was appropriate.

This is an interesting and nuanced decision showing that the fact that an employee is harassed does not automatically justify or explain a violent response by the employee.  Instead, the employee must prove, through medical and/or other evidence, that his or her response resulted from the harassment.

Walton Enterprises v. Lombardi, 2013 ONSC 4218 (CanLII)

 

Fired Employee Failed to Prove that Depression, Harassment Drove him to Fight: Court

“Smiley Face”, Friendly Tone Showed E-mail Exchange Not Harassing: Arbitrator

A supervisor’s e-mails to an employee were not harassing, an arbitrator has held, noting the employee’s friendly tone – “great game Thurs night” – and use of the “smiley face” in his replies to the supervisor’s e-mails.

The employee, who was unionized, filed a grievance alleging that the employer, by permitting the supervisor’s allegedly-harassing e-mails, violated an article of the collective agreement that required the employer to “make reasonable provisions for the safety and health” of employees. 

The e-mail exchange was about problems with the employee’s time cards.  The employee claimed that the supervisor’s questions about his time cards were akin to “calling me a thief and a liar”.

The arbitrator cited the following definition of harassment, from another arbitration case:

“Harassment includes words, gestures and actions which tend to annoy, torment, pester, persecute, bother and embarrass another person, as well as subjecting someone to vexatious attacks, questions, demands or other unpleasantness.  A single act, which has a harmful effect, may also constitute harassment.”

The arbitrator decided that the supervisor was simply fulfilling his legitimate responsibilities in his supervisory position, attempting to resolve discrepancies in the employee’s recorded hours of work. 

The employee’s friendly tone in his reply to the supervisor’s e-mails, was also noted by the arbitrator.  In one e-mail, the employee wrote, “p.s. great game Thurs night”, and he used his nickname “Chiser” and a “smiley face”.  In another e-mail, the employee addressed the supervisor, “Hey Eddie, . . . we can chat next week” and also added a “smiley face”.  The tone of the e-mail exchange did not show any animosity towards the employee.

This decision demonstrates the wisdom of supervisors using a temperate tone, wherever possible, in their e-mails to employees. It also shows that a supervisor’s legitimate exercise of his or her duties will not, in general, be considered harassment.

Kinark Child & Family Services Syl Apps Youth Centre v Ontario Public Service Employees Union, Local 213, 2012 CanLII 97669 (ON LA)

“Smiley Face”, Friendly Tone Showed E-mail Exchange Not Harassing: Arbitrator

Harassed Employee’s Work Refusal Illegal: Court

An employee did not have a right under occupational health and safety legislation to refuse work due to harassment, a Nunavut judge has held.

The employee, a wildlife biologist with the Government of Nunavut, refused to work due to harassment.  She filed a work refusal complaint with a government safety officer.  Under the Safety Act, an employee could refuse to work due to an “unusual danger” in the workplace.  The safety officer decided that the employee had been subject to harassment and that the harassment constituted an “unusual danger” so that the work refusal was justified.

The court disagreed, and overturned the safety officer’s decision.

The court noted that unlike other provinces’ workplace safety laws, Nunavut’s Safety Act is silent on the issues of workplace violence and harassment.  In Nunavut, a safety officer could not issue an order to stop harassment, and the legislation did not otherwise protect employees from harassment.  As such, if the Safety Act were interpreted to permit work refusals due to harassment, employees subject to harassment would have no other remedy under that Act except the most drastic response – refusing to work.  That did not make sense.

The court noted that in Ontario, the Occupational Health and Safety Act permits employees to refuse to work due to workplace violence but not workplace harassment – a policy choice that the Ontario government made.

The court concluded:

“Clearly the attitude to workplace harassment has changed over the years and there is now a recognition that there can be ill effects on both mental and physical wellbeing as a result of harassment. There are many arguments to support the inclusion of provisions regarding workplace violence and harassment in occupational health and safety legislation and other workplace related legislation. Ultimately, however, it is for the Legislature to decide whether or not to address these issues and, if so, how to best go about doing so.”

This case illustrates that whether harassment is a “safety” issue under workplace safety laws, depends on the wording of the statute in question.  It is not true, as a general proposition, that harassment is a safety issue.

Nunavut (Minister of the Environment) v. WSCC, 2013 NUCJ 11 (CanLII)

Harassed Employee’s Work Refusal Illegal: Court

“Simmering Ball of Negativity” Dismissed After Threatening Statements

An arbitrator has upheld the dismissal of a city “traffic operations” employee for threatening statements, a racist comment and one incident of dangerous and aggressive driving.  The city relied on four incidents in firing the employee.

In the first incident, after being asked how his weekend was, the employee said that he had cleaned his gun and polished it up, and that there were “a few flunkies in the lunchroom that I would like to take hunting”.  “Flunky” was a derogatory term that he routinely used to describe co-workers.  The arbitrator found the employee’s statement to be threatening.

In the second incident,  while a passenger in a City vehicle, he rolled down the window and yelled at group of protesters words to the effect of: “Go out there and get a f——- job. Go get a job.”

In the third incident, he made a racist statement, about Italians, “the only good —– is a dead —–”.

In the fourth and final incident,  he drove a city vehicle directly at a vehicle that was driving the wrong way on a street.

The arbitrator concluded:

“The grievor, in my view, is not just ‘eccentric’, as Union counsel did his utmost to portray him; he is, at least in the context of his most recent workplace setting, a simmering ball of negativity who is routinely disparaging of his co-workers, a maker of threatening or menacing sounding statements, a person given to insulting the public that the City serves, and capable of erratic, even dangerous, behaviour behind the wheel of a very large City vehicle. In my view, each and every one of these events, which unfolded over a relatively brief ten-day period, was worthy of discipline and all of them, in the light of the grievor’s record, support the decision to discharge.”

Further, the employee lacked self-awareness and was not apologetic, and did not appreciate the seriousness of his misconduct.

This case is another example of how arbitrators are decreasingly tolerant of threatening or violent conduct in the workplace.  The interesting aspect of this case is that while any one of the incidents, taken alone, might not have been just cause for dismissal, taken together they did provide just cause.

Windsor (City) v Canadian Union of Public Employees, Local 543, 2013 CanLII 40522 (ON LA)

 

 

 

 

“Simmering Ball of Negativity” Dismissed After Threatening Statements

Employee did not have Duty to Intervene to Stop Fight: Court

Does an on-shift-employee have a duty to intervene to stop a fight between members of the public – or between other employees?  A recent court decision provides some guidance on that issue.

Madam Justice Beth Allen of the Superior Court of Justice (Ontario) decided that a bus driver was not required to intervene to stop a fight between two bus passengers.  She dismissed a negligence suit against the driver.

The two passengers got into an “altercation” on a bus.  The incident started when one passenger bumped the other while moving toward the back of the bus. Angry words ensued which led to them grabbing each other and the plaintiff falling to the floor and being injured.  The injured passenger sued both the Toronto Transit Commission and the driver.  The TTC and the driver moved to have the lawsuit thrown out, arguing that there was no genuine issue of fact requiring a trial.

The court stated that the “Security for Bus Operators” manual prohibits a driver from intervening physically in a fight because of the risk of physical injury and the risk of being charged with assault.  It was also up to the driver’s judgment as to whether to verbally tell the fighters to stop.  Here, the bus driver acted reasonably by stopping the bus and putting it out of service.

In short, the plaintiff had not proven that the TTC or driver were negligent   The lawsuit was dismissed.

According to this decision, the employee was not required to intervene to stop a fight since doing so could have put himself in harm’s way.

Clarke v. Toronto Transit Commission, 2013 ONSC 2287 (CanLII)

 

Employee did not have Duty to Intervene to Stop Fight: Court

Unremorseful Sexual Harasser was Fired for Cause: Court Reproves Arbitrator

An unremorseful mail room clerk’s sexual harassment and grabbing of a contract worker was just cause for dismissal, the Ontario Divisional Court has held, overturning and criticizing an arbitrator’s decision.

A female cleaner employed by a cleaning contractor in the building complained that the mail room clerk tried to kiss her in an elevator, that she pushed him away, after which he grabbed her buttocks.  She reported that the employee had grabbed her buttocks in the past, and that it had “been going on for a long time”, four to five years, and she wanted it to stop.  When confronted, the mail room clerk did not deny the incident, but he alleged that it had been consensual.

The employer fired the mail room clerk. A unionized employee, he challenged the firing at arbitration, but  – curiously – he did not testify at the hearing.  The arbitrator reinstated the employee, noting that after another employee had confronted him about sexually harassing her, “it does not appear that [the other employee] was bothered by him again.”

On judicial review, the court noted that the mail room clerk had, for approximately five years, engaged in behaviour that included speaking and gesturing in a sexually suggestive way, performing a “sexy dance”, blowing kisses, and sometimes grabbing the contract worker’s buttocks.  The court found that the buttock-grabbing constituted sexual assault, and all of the behaviour taken together constituted sexual harassment.

The court, in a reproof of the arbitrator, stated:

“The arbitrator’s reasons demonstrate that he was keenly aware of Mr. Haniff’s lack of remorse and insight. Yet he chose to reinstate Mr. Haniff on the basis of what he regarded as two “significant” pieces of evidence. First, another cleaner was able to get Mr. Haniff to stop sexually harassing her when she threatened him with violence by showing him her fist and the same cleaner also testified that the Complainant was a strong woman who could stand up for herself. Second, the Complainant did not want Mr. Haniff discharged.

“Both these considerations were irrelevant and represent a dangerous step backwards in the law surrounding the treatment of sexual misconduct in the workplace. It is not the responsibility of employees to protect themselves from being sexually harassed or assaulted by being strong or threatening violence. Employees are entitled to a workplace that is free from sexual harassment and employers have a responsibility to ensure that their employees are not exposed to this type of behaviour. The legislature has reinforced these obligations in Bill 168, which involved a series of amendments to the Occupational Health and Safety Act that deal with violence and harassment in the workplace.”

Further, the court found that the mail room clerk’s “so-called ‘apology’” letter to the complainant was not really apologetic,  and that he lacked remorse and insight.  There was no evidence that he had learned from his experience, had insight into his behaviour or was likely to take steps to ensure that it did not happen again.

In the result, the employer had just cause to dismiss the mail room clerk.  The arbitrator’s decision was overturned.

This case demonstrates the courts’ strong stance against sexual harassment in the workplace, particularly in light of Bill 168, and is consistent with earlier decisions such as Bannister v. General Motors of Canada Ltd., 1998 CanLII 7151 (ON CA).

Professional Institute of the Public Service of Canada v. Communications, Energy and Paperworkers’ Union of Canada, Local 3011, 2013 ONSC 2725 (CanLII)

 

Unremorseful Sexual Harasser was Fired for Cause: Court Reproves Arbitrator

Angry Confrontation of Employee by a Manager Could be Safety Issue: OLRB

In what appears to be a departure from a growing line of cases, the Ontario Labour Relations Board has permitted an employee to advance her claim that the employer violated the Occupational Health and Safety Act when it fired her after a manager allegedly confronted her in an angry manner.

The employee, Ashworth, alleged that the manager demanded that she close the door and then positioned herself in front of the closed door and started screaming and pointing her finger in the employee’s face.  The employee claimed that she became afraid and was asked to be allowed to leave, but the manager continued to be abusive.  The employer subsequently terminated her employment.

The employer appears to have argued that the employee’s complaint did not make out a safety-reprisal case because the incident did not raise workplace safety issues under the Occupational Health and Safety Act, and therefore there was no basis for the employee’s claim that she was fired for raising safety issues.

That argument flows from a line of cases, of which Conforti v Investia Financial Services Inc, 2011 CanLII 60897 (ON LRB) is most notable. In that case, the OLRB stated that “it appears the OHSA only requires an employer to put a workplace harassment policy and program in place and to provide a worker with information and instruction as appropriate”, but that the OHSA does not actually require the employer to prevent harassment.  As such, an employee’s claim that she was fired for asking the employer to prevent harassment does not engage the OHSA and cannot form the basis for a reprisal claim.

The OLRB, in Ms. Ashworth’s case, was not persuaded that the case should be dismissed at this stage for failure to disclose a prima facie reprisal case.  Although the decision does not say it, the OLRB may have felt that the manager’s conduct might constitute workplace violence – rather than harassment – in which case the employee’s complaint could possibly succeed.  The OHSA does require employers to take reasonable steps to avoid workplace violence – but not harassment.

Ashworth v Boston Pizza, 2013 CanLII 20917 (ON LRB)

Angry Confrontation of Employee by a Manager Could be Safety Issue: OLRB

Court Dismisses Safety-Reprisal Complaint Related to Family Dispute

An employee who claimed that he was dismissed after sharing his concerns about the well-being of himself and his children and the “lifestyle of their mother”, has been denied a remedy under the safety-reprisal provisions of the Canada Labour Code.

The employee, who was in the midst of a family-law dispute, alleged that his employer, the Canada Revenue Agency, did nothing to respond to those concerns including notifying proper authorities. He said that had an occupational health and safety investigation been held and a report properly issued following his complaint, the whole matter would have turned out differently and he would not have been dismissed.

The Public Service Labour Relations Board dismissed his reprisal complaint, holding that the employer’s decision to terminate his employment was an extension of its decision to place him on leave without pay after he exhausted his sick leave credits and did not return to work.

The Federal Court of Appeal upheld the PSLRB’s decision, holding that the employee was “unable to show the link between the asserted danger and his employer, but for the alleged duty of the CRA to get involved in his personal life and to protect him and his children.”

This case is an example of how occupational health and safety laws will not extend to alleged safety concerns in an employee’s personal life of a purely private nature that do not affect an employee’s workplace safety.

Gaskin v. Canada (National Revenue), 2013 FCA 36 (CanLII)

Court Dismisses Safety-Reprisal Complaint Related to Family Dispute

Workplace Violence and Harassment Top MOL Orders in Blitz

Workplace violence and harassment was the most common category of compliance orders made by Ontario Ministry of Labour inspectors in a recent compliance blitz in the manufacturing sector.

13% of the 5,392 orders dealt with workplace violence and harassment.  Although 16% of orders dealt with employer’s general safety duties, that is a broad group that contains many different kinds of orders.

Inadequate machine guarding was the next most common type of compliance order.

Although the Ministry of Labour’s blitz report does not break down the reasons for issuing the compliance orders dealing with workplace violence and harassment, I expect that the orders dealt with failure to prepare a workplace violence policy and program and workplace harassment policy and program; failure to conduct a workplace violence risk assessment; failure to provide “information and instruction” to employees regarding workplace violence and harassment; and failure to post the workplace violence and workplace harassment policies (a breach that would be immediately evidence to a Ministry of Labour inspector).

The blitz results are a reminder to employers to, first of all, ensure that their workplace violence and harassment policies are posted, and also to ensure that the other OHSA obligations relating to violence and harassment have been satisfied.

The Ministry of Labour’s blitz report may be accessed here.

Workplace Violence and Harassment Top MOL Orders in Blitz

Managers File Complaints about Employees’ Offensive Blog Posts, but Remedy Denied

Usually employees complain about their managers, not the other way around.

In an interesting case, a group of managers, who complained that their workplace had been poisoned by the employer’s inaction in the face of offensive blog postings by their employees, has been denied a remedy.

The managers were Operational Managers at the Middlesex Detention Centre.  They complained about a blog associated with a local of the Ontario Public Service Employees Union.  Some of the blog posts alleged managerial corruption or negligence, such as having “screwed up” an attendance management program.  The blog posts used words such as “useless”, “pathetic”, “vindictive”, “morons” and “misfits”.  Cartoons and comments referred to “kangaroo courts” imposing discipline on the employees.  The blogs characterized the managers’ “pay for performance” as being bonuses for “screwing up”.

The blog was initially not password-protected but at some point password-protection was added.

The managers argued that the blog comments were “harassment” and violated the employer’s harassment policy and that by not acting on those violations, the employer breached the terms and conditions of the managers’ employment contracts.

The Public Service Grievance Board held that senior management – who managed the complaining managers – had not violated the complaining managers’ terms and conditions of employment in the way that the blog issue was handled.  In particular, senior management did not violate the employers’ policies in the way they handled the issue.  Senior management made clear to all employees that the disrespectful portions of the blog were not to be tolerated, and was instrumental in getting the blog removed from the public domain.   That senior management did not pursue the matter further after password-protection was added to the blog was an exercise in discretion that did not breach the managers’ employment contracts.  As such, the complaints of the managers were dismissed.

Although senior management’s handling of the blog issue was considered reasonable, had the facts been different – and the offensive blog posts continued to be accessible to the public – the Public Service Grievance Board may have granted a remedy.

Lee et al and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 4672 (Ontario Public Service Grievance Board)

Managers File Complaints about Employees’ Offensive Blog Posts, but Remedy Denied

Employer Violated Workplace Violence Law: Ontario Arbitrator

An Ontario arbitrator has found that an employer violated Bill 168 which introduced workplace violence provisions into Ontario’s Occupational Health and Safety Act.

The Labourers’ International Union of North America, Local 506, referred a workplace violence grievance to the Ontario Labour Relations Board. For some reason, the employer did not file the necessary response form with the OLRB. As such, the OLRB proceeded to hear the grievance without the employer having filed any materials.

On the basis of the facts stated by the union, the OLRB found that a principal of the employer had assaulted, on a job site, a labourer employed by the employer, and that the principal later threatened another worker with physical violence and death.

The OLRB also found that the employer had failed to prepare, review and post workplace violence and harassment policies or programs, or to provide information and instruction to workers regarding workplace harassment, in violation of sections of the Occupational Health and Safety Act that were introduced in Bill 168.

The OLRB therefore directed the employer to “cease and desist from violating . . . the provisions of the Occupational Health and Safety Act.

While the union also asked the OLRB to award damages – including for mental distress – to the employees who were the victims of workplace violence, the OLRB said that it did not have sufficient evidence to do so, but the OLRB scheduled a date to deal with the assessment of damages.

Although the employer did not participate in this grievance hearing, the decision is a warning to employers that non-compliance with the Bill 168 workplace violence and harassment provisions is not just a technical breach, but may result in legal orders and damages.

Labourers’ International Union of North America, Local 506 v Pro-Cut Concrete Cutting Ltd, 2013 CanLII 1240 (ON LRB)

Employer Violated Workplace Violence Law: Ontario Arbitrator

When is an MOL Notice of Workplace Accident Required? Ontario Court of Appeal Clarifies

Many Ontario employers will be relieved by an Ontario appeal decision that clarifies – and limits – the obligation to report workplace accidents to the Ontario Ministry of Labour.  “[I]t is not part of the purpose and objective of the Act to protect non-workers.”

A guest’s swimming pool death did not require an Ontario resort to file a Notice of Accident with the Ontario Ministry of Labour, the Ontario Court of Appeal ruled, overturning a lower court decision that risked dramatically expanding some employers’ accident reporting obligations.

Facts

In 2007, the guest had drowned in an indoor swimming pool at the resort.  No Blue Mountain employees were working at the pool at the time.  A Ministry of Labour inspector ordered Blue Mountain to report the accident to the MOL.  The inspector’s decision was upheld by the Ontario Labour Relations Board and the Ontario Divisional Court.

Section 51 Notice of Accident

The Occupational Health and Safety Act‘s accident-notification provision, subsection 51(1), states:

51(1) Where a person is killed or critically injured from any cause at a workplace, the constructor, if any, and the employer shall notify an inspector, and the committee, health and safety representative and trade union, if any, immediately of the occurrence by telephone or other direct means and the employer shall, within forty-eight hours after the occurrence, send to a Director a written report of the circumstances of the occurrence containing such information and particulars as the regulations prescribe. [underlining added]

The MOL argued that “person” means any person, not just employees, so that employers must report any death or critical injury of any person – including guests or visitors – in a workplace.

The Court of Appeal disagreed, noting that the MOL’s interpretation would have the absurd result that it would make “virtually every place in the province of Ontario (commercial, industrial, private or domestic) a ‘workplace’ because a worker may, at some time, be at that place.  This leads to the absurd conclusion that every death or critical injury to anyone, anywhere, whatever the cause, must be reported.”  For instance, there was evidence that there were approximately 7,000 accidents every year at Ontario ski resorts, many of which – on the MOL’s interpretation – would need to be reported to the MOL even if no employee was involved.

When to file MOL Notice of Accident: 3 Factors

The Court of Appeal decided that an employer must file with the MOL a Notice of Accident where the following three requirements are met:

a) a worker or non-worker (“any person”) is killed or critically injured;

b) the death or critical injury occurs at a place where (i) a worker is carrying out his or her employment duties at the time the incident occurs, or, (ii) a place where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work (“workplace”); and

c) there is some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at that workplace (“from any cause”).

The third factor – a reasonable nexus between the safety hazard that caused the accident and a risk to worker safety – is the key factor arising from this decision.  It means that an injury to a non-worker in a workplace will not require the filing of a Notice of Accident if it does not reveal a worker-safety risk.

Result: No Requirement to Report This Guest’s Death

The court said that here, there was no evidence that the guest’s death in the swimming pool was caused by any hazard that could affect the safety of a worker, whether present or passing through.  As such, the third factor was not satisfied, and the resort was not obligated to report the accident to the Ministry of Labour.

Implications for Workplace Violence Policies

The court’s clarification of the meaning of “workplace” is also relevant to employer’s workplace violence policies and programs.  Employers’ workplace violence obligations will extend to a place where “(i) a worker is carrying out his or her employment duties at the time the incident occurs, or, (ii) a place where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work”.

This is an important and readable decision that human resource and health and safety managers should read.

Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75 (CanLII)

 

When is an MOL Notice of Workplace Accident Required? Ontario Court of Appeal Clarifies

“I Should have Brought a Gun to Shoot Her” Comment was Not Workplace Violence: Ontario Arbitrator

In a surprising decision, an Ontario arbitrator has decided that a picketing employee’s comment to his fellow picketers that “I should have brought a gun to shoot” a company security officer, who was nearby and overheard the comment, did not justify his dismissal.

One suspects that many employers would take the opposite position: that any workplace comment about shooting another worker would be workplace violence.

After the picketing employee made the comment, the company called in the police who laid charges against the employee that were eventually dropped.  The company fired the employee.

The arbitrator noted that the employee, when he made the comment, did not use the security guard’s name and did not speak in a threatening tone.  He was “trying to be funny”.  Also, he addressed his comment to the group of picketers, not to the security guard.  Further, the arbitrator decided that the security guard’s actions showed that he had not perceived the comments to be threatening; she thought that it could have been a case of a “really bad sense of humour”.  Lastly, the arbitrator decided that the employee had not intended to threaten the security guard, although he was unhappy that she was “hanging around” the picketers.

As a result, the arbitrator found that the employee’s conduct did not constitute workplace violence. Nevertheless, his comments were “completely and totally inappropriate”, particularly given the heightened awareness about workplace violence after Ontario’s Bill 168 which added workplace violence and harassment provisions to the Occupational Health and Safety Act.

The arbitrator reinstated the employee and directed that a 30-day suspension be placed on his file.  The arbitrator also awarded him 19 months of back pay due to delays, that the arbitrator said were caused by the employer, in starting the arbitration hearing.

This decision, while based on its unique facts, appears to conflict with some other arbitration decisions in which arbitrators took a hard line against workplace violence.  Click here for our blog posts on some of those cases.

Vale Canada Ltd v United Steelworkers of America, Local 6500, 2012 CanLII 81310 (ON LA)

 

“I Should have Brought a Gun to Shoot Her” Comment was Not Workplace Violence: Ontario Arbitrator

“Arbitrators have recently shown a decreasing tolerance for threats or violence in the workplace”: Ontario Arbitrator

An employee who was dismissed after threatening management in a suspension meeting was not entitled to reinstatement – even though the suspension being imposed in the meeting was unjust – an Ontario arbitrator has decided.

The employee, a nurse at a hospital, became upset in the suspension meeting and threatened to retaliate, stating that he had “a plan” to deal with the management present. He stood up on a number of occasions and pointed his finger at the managers. He also raised his voice and spoke in a stern manner. The arbitrator decided that a reasonable person in the room would have had reason to believe the employee was threatening them. This was not a momentary flare-up, but was the second incident in which the employee was unable to control his emotions and acted inappropriately.

Arbitrator John Stout stated that, “there is generally a greater concern today about threats and violence in the workplace. Arbitrators have recently shown a decreasing tolerance for threats or violence in the workplace”.

Most aggravating, according to the arbitrator, was the fact that the employee did not accept that he did anything wrong, and did not apologize. However, it was important that the suspension being imposed at the time of the employee’s outburst was not just; the outburst was not premeditated; the threats were not intended to be physical but threats of legal action. Dismissal, without compensation, was therefore an excessive response.

The arbitrator nevertheless denied reinstatement. The employee mistrusted the hospital and had contempt for management and even for his union. He blamed everyone else and accepted very little responsibility for his own actions. His relationship with the hospital was poisoned and a return to work would not fix it. Therefore, the arbitrator awarded the employee damages instead of reinstatement.

Humber River Regional Hospital v. O.N.A., 2012 CarswellOnt 8834 (Ontario Arbitrator)

“Arbitrators have recently shown a decreasing tolerance for threats or violence in the workplace”: Ontario Arbitrator

Supervisor’s “Blunt, unflattering assessment” of Employee’s Performance was not Harassment under OHSA

A supervisor’s conduct that falls within his or her normal work function is not normally “workplace harassment” under the Occupational Health and Safety Act, the Ontario Labour Relations Board has said in a welcome decision for employers, even where it has “unpleasant consequences” for the employee.

A social worker at a nursing home alleged that the Director of Care harassed her by issuing a written warning and by telling the social worker many times that she was to document and keep on file every conversation that she had with residents’ family members. She said that the supervisor also expressed concern with the social worker’s difficulties “keeping up with the Resident Assessment Protocols”.   The social worker wrote an e-mail to various members of senior management complaining about the Director of Care’s treatment of her.  Shortly afterwards, the nursing home terminated her employment.  The social worker then filed a complaint under the OHSA alleging she suffered a reprisal for raising harassment issues.

The OLRB stated:

The workplace harassment provisions do not normally apply to the conduct of a manager that falls within his or her normal work function, even if in the course of carrying out that function a worker suffers unpleasant consequences.” [underlining added]

. . .

“The worst that can be said of what happened is that Ms. Heinz made a blunt, unflattering assessment of the applicant’s performance and demanded in no uncertain terms that she fulfill management’s work expectations or risk discipline.”

The OLRB decided that the Director of Care’s reminders to document discussions with family members, and comments about the employee’s ability to keep up, were not a “vexatious course of conduct or comment”.  Sometimes the exercise of management functions, which the supervisor was engaging in, has unpleasant consequences for employees, but that did not necessarily translate into workplace harassment.

Amodeo v Craiglee Nursing Home Limited, 2012 CanLII 53919 (ON LRB)

Supervisor’s “Blunt, unflattering assessment” of Employee’s Performance was not Harassment under OHSA