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New Alberta Bill 208 seeks to provide protection against workplace bullying

On November 9, 2016, Calgary MLA Craig Coolahan introduced Bill 208, Occupational Health and Safety (Protection From Workplace Harassment) Amendment Act, 2016. This Bill seeks to address workplace bullying by introducing provisions dealing with harassment into Alberta’s Occupational Health and Safety Act.

Currently, Alberta’s occupational health and safety legislation contains requirements relating to workplace violence. However, since “violence” is defined in the legislation as conduct that caused or is likely to cause physical injury, the existing requirements do not apply to many cases of workplace harassment.

The proposed amendments include a definition of “harassment” that would require the conduct to constitute a threat to the health or safety of the worker. The amendments would add a specific obligation on employers to ensure, as far as it is reasonably practicable, that its workers are not exposed to harassment in their employment. It would also add an obligation on workers to refrain from causing or participating in the harassment of another worker. Employers would be required to establish and administer a workplace harassment policy and investigate complaints of workplace harassment. Workers who are not satisfied with the outcome of the employer’s investigation process would have the option to file a complaint with an officer.

Bill 208 can be found here.

New Alberta Bill 208 seeks to provide protection against workplace bullying

Federal employee has effective veto over appointment of “impartial” workplace violence investigator, as long as veto not exercised in “abusive” manner: Tribunal

A federal employee’s objection to the appointment of a workplace violence investigator was valid, the Occupational Health and Safety Tribunal Canada has decided, because the investigator was not “seen by” the employee as impartial.  Although this decision legally affects only federally-regulated employers (those subject to the Canada Labour Code), it is likely of interest to provincially-regulated Canadian employers too.

The employee, Mr. Chartrand, claimed that he had been abused and harassed in the workplace.  Another employee claimed that Chartrand had himself engaged in workplace violence and harassment.

The investigator in Chartrand’s complaint decided that the complaint was “inadmissible” and that it was impossible for him to confirm whether the alleged actions had taken place.  Chartrand asserted that the investigator was impartial because he did not meet with the witnesses that Chartrand had referred to him.  A different investigator in the second complaint concluded that the complaint against Chartrand was justified.

The Canada Occupational Health and Safety Regulations require, in section 20.9, that if the parties are unable to resolve a workplace violence complaint, the employer must appoint a “competent person” to investigate who is “impartial and is seen by the parties to be impartial“.

The Tribunal stated:

[55]           The legislator clearly preferred a consensual approach to the issue of impartiality. By including the words and is seen by the parties to be impartial after the word impartial, the legislator clearly requires the parties to agree on whether the person proposed by the employer is impartial . . . If an agreement is not reached, the proposed person simply cannot be appointed.

[56]           From this it can be inferred that the legislator considered it vital that the parties agree on the impartiality of the person designated to conduct the investigation whose objectives are described in subsection 20.9(3) and et seq. of the Regulations. There is no doubt that the objective sought by the legislator is to ensure the credibility of the recommendations that this person must provide at the end of the investigation and to promote their acceptance by all of the parties involved.

The Tribunal decided that it is up to the employer to appoint a “competent person” to investigate but that person’s impartiality must be genuine and seen as such by the parties.  The employee’s refusal to agree that an investigator was impartial need not be “substantiated and justified” but it must not be abusive.

The Tribunal noted that an “abusive or discriminatory” approach by an employee in the selection of an “impartial” investigator could lead to discipline against the employee or be interpreted as a waiver of the employee’s rights to have a competent person appointed under the Canada Labour Code to conduct an investigation into workplace harassment or violence.

The Tribunal decided that Chartrand had not abused his rights in this case.  The Tribunal noted that Chartrand was at the centre of a number of disputes with his employer, and this could explain his distrust of the employer’s representatives and his belief that the investigation would be harmful to him from the outset.

Maritime Employers Association v. Longshoremen’s Union, CUPE, Local 375, 2016 OHSTC 14 (CanLII)

Federal employee has effective veto over appointment of “impartial” workplace violence investigator, as long as veto not exercised in “abusive” manner: Tribunal

Bill 132 update: OHSA amendments are now in force; MOL updates plain language guide on workplace violence and harassment

As we have previously reported, Bill 132’s amendments to the workplace harassment provisions of the Ontario Occupational Health and Safety Act came into force on September 8, 2016.

On September 13, 2016, the Ministry of Labour published an updated version of its guide, Workplace Violence and Harassment: Understanding the Law (the “Guide”), which now includes guidance on the Bill 132 amendments.  The Guide seeks to explain, in plain language, “what every worker, supervisor, employer and constructor needs to know about workplace violence and harassment requirements in the Occupational Health and Safety Act” and also answers frequently asked questions about the OHSA. In particular, the Guide clarifies the following points about the OHSA’s workplace harassment provisions:

  • The suggested content of a workplace harassment policy, which is not otherwise set out in the OHSA;
  • Examples of “reasonable action” that do not constitute workplace harassment under the OHSA;
  • That employers can combine their workplace harassment policies and programs into one document or combine both documents with other workplace policies of the employer (e.g. workplace violence policies, anti-harassment or anti-discrimination policies, etc.), as long as all of the OHSA’s requirements are complied with;
  • That someone either internal or external to the organization can receive reports of workplace harassment, as long as the report is addressed objectively and investigated in an appropriate manner;
  • The characteristics of an “appropriate” investigation, including: who can investigate complaints, suggested stages of a complex investigation, and suggested timeframes for completing investigations;
  • Examples of “corrective action” and how to provide the results of the investigation to involved parties in situations where the alleged harasser has left the organization;
  • When and how employers should conduct a review of their existing workplace harassment programs;
  • The scope of the employer’s duty to provide workers with “information and instruction”; and
  • Who is an “impartial person” who could conduct a harassment investigation ordered by a Ministry of Labour inspector under the OHSA’s new enforcement mechanism.

The Ministry of Labour confirms that, unlike the Ministry’s Code of Practice for Workplace Harassment (which we reported on here), adherence to the contents of the Guide does not constitute compliance with the law. However, the Ministry also notes that its health and safety inspectors may refer to the Guide when enforcing compliance with the OHSA. As such, the Guide is a helpful resource for employers when creating, reviewing and implementing their workplace harassment policies and programs. The Guide can be accessed here.

Bill 132 update: OHSA amendments are now in force; MOL updates plain language guide on workplace violence and harassment

Persistent “sexual annoyance” of five female coworkers gets employee fired for cause, despite late reporting of incidents

A shelter support worker’s persistent pattern of sexual comments to five female coworkers justified his dismissal for cause, despite the coworkers’ failure to promptly report the incidents, a labour arbitrator has decided.

The coworkers complained that he had persistently commented about his sexual exploits, his body parts, the coworkers’ body parts, and how he wanted to have sex with certain coworkers and clients.  They also complained that he had made obscene sexual gestures.

The employee claimed that all of the allegations were false and that the five female coworkers had conspired to get him fired because they were upset about him winning a grievance that awarded him a certain job.  He noted that there had never been “hint” of him engaging in such conduct in his 25 years as a support worker and 7 years with this employer. He also noted that none of the coworkers reported the incidents at the time they allegedly happened.

The arbitrator stated that if there had been only one complainant, the case would have been different.  Here, however, there were five complainants.  Absent any evidence that the coworkers conspired to perjure themselves to get the employee fired, the arbitrator could not find that they had.

With respect to the coworkers’ failure to report the incidents promptly, the arbitrator stated:

“There were shortcomings in the evidence of the five female co-workers who testified against Mr. Elmi.  On the face, the most troubling was the failure of any of them to have reported Mr. Elmi’s alleged misconduct at the time.  However, given that it was sexual arrogance and not sexual coercion, given that none of these witnesses were aware at the time that the others were being subjected to the same abuse, given that there were no witnesses and given that there was no thought that Mr. Elmi would be terminated such that even if reported the female might again work unsupervised and alone with Mr. Elmi, I do not find it surprising that the alleged misconduct was not reported at the time.  In the final analysis I have been persuaded by the consistent and unshaken central assertion of these witnesses; that is, that Mr. Elmi engaged in persistent and particularly offensive sexual annoyance. When all the evidence is considered and weighed, I accept the central assertion of the five female bargaining unit co-workers who testified against Mr. Elmi. Accordingly, I reject Mr. Elmi’s denials and hereby find that Mr. Elmi engaged in persistent, pervasive, unwelcome and extremely offensive sexual annoyance in the workplace.”

As such, the arbitrator decided that the employer had just cause for dismissal. Since the employee was not remorseful, and had made a “blanket denial” of all of the allegations, it was not appropriate to reinstate him and give him another chance.

Ottawa (City) v Ottawa-Carleton Public Employees’ Union, Local 503, 2016 CanLII 59377 (ON LA)

Persistent “sexual annoyance” of five female coworkers gets employee fired for cause, despite late reporting of incidents

Sidewalk rage? Employee convicted of dangerous driving under Criminal Code after “trying to scare” his boss by driving towards him

An employee has been convicted of dangerous operation of a motor vehicle after he drove towards his boss three times, “trying to scare him”.

The employee worked as a labourer in construction.  His relationship deteriorated with his boss, leading to a physical altercation between them.  After the altercation, the boss was standing on the sidewalk when the employee circled at least once, and perhaps two or three times, and attempted to strike or at least come very close to his boss with his car.  He was driving quickly at a speed that appeared dangerous to other witnesses who observed the incident.

The court found that although the employee was “operating under some stress and confusion”, he was not merely trying to escape his boss.  The employee’s assertion that he had no intention of hitting his boss was not a defence.  In his statement to the police, the employee admitted that when he drove towards his boss, he was trying to scare him.  That admission was enough to show mens rea, the “guilty mind” requirement for a criminal charge.

The court decided that driving on the sidewalk at some speed to try to scare someone was a “marked departure from the standard of care that a reasonable person would observe”.  A reasonable person would have been aware of the risk.  The employee actually admitted at trial that driving on the sidewalk “was a mistake”.

The employee was therefore guilty of the criminal offence of dangerous driving.

R. v. Draid, 2016 BCSC 423 (CanLII)

Sidewalk rage? Employee convicted of dangerous driving under Criminal Code after “trying to scare” his boss by driving towards him

Despite employee’s concerns with speed, quality and outcome of harassment investigation, no reprisal under OHSA

Even though an employer’s harassment investigation was allegedly slow, inadequate and had a questionable outcome, the employee had not suffered a “reprisal” under the Ontario Occupational Health and Safety Act, the Ontario Labour Relations Board has held.

The Employee alleged that another employee had harassed her.  She filed a harassment complaint with the employer. The employer investigated and actually found that her complaint was substantiated.

The employee was still unhappy. She filed a reprisal complaint with the OLRB, alleging that the investigation took too long and was of poor quality, and that the outcome was not appropriate (she said that the employer has not done enough to protect her from the harasser – she had asked the employer to guarantee that she would never work with him again – and she wanted more serious discipline imposed on the harasser).

The OLRB decided that the employer’s actions, if true, did not meet the definition of reprisal under the OHSA.  The employee did not claim that she was disciplined, dismissed or threatened for claiming the protection of the OHSA.  Nor did she plead any facts that could lead the OLRB to conclude that the employer has penalized, intimidated or coerced her for seeking to enforce the OHSA.

The OLRB stated:

While Ms. Pouli is not happy with the conduct of the investigation and, to a certain extent, its outcome, her dissatisfaction with the process and the discipline (or lack thereof) ultimately imposed upon the Co-worker do not constitute reprisals under the Act . . . [T]he instant case can be summarized as follows: The Employer has a Policy pursuant to which Ms. Pouli filed a Complaint, which was investigated but Ms. Pouli is not happy with the investigatory process and certain aspects of the results.  This set of facts simply does not engage section 50 of the Act.”

This case illustrates the principle that under the OHSA, most harassment issues are to be dealt with and resolved internally within the employer’s organization.  Given the structure of the harassment provisions of the OHSA, in only exceptional cases will the OLRB or the Ontario Ministry of Labour get involved with the conduct or even the outcome of harassment investigations.

Camille Pouli v Ministry of Community Safety and Correctional Services, 2016 CanLII 48460 (ON LRB)

Despite employee’s concerns with speed, quality and outcome of harassment investigation, no reprisal under OHSA

Fired employee’s Facebook post calling company “s—hole” showed dismissal for workplace outbursts, threat was indeed appropriate

An employee who yelled and swore at a manager about a written test for a maintenance position, and a few days later took a gun out of a box in the company parking lot and “pumped it”, was fired for cause, an arbitrator has decided.  The employee, who already had a lengthy discipline record, also told the human resources manager that he would “regret his actions” and that the employee’s brother” knows” the HR manager, which the arbitrator in the employee’s dismissal grievance found was a veiled threat.

The employee said that the gun, which resembled an assault rifle, was an “airsoft” gun, and that he simply opened the gun box to look at it. He admitted later that it was not a good idea to have done that.

The arbitrator said that the employee’s confrontations with the managers, taken alone, might not have justified dismissal, even though they were very serious in light of Ontario’s Bill 168 which introduced harassment and violence provisions to the Occupational Health and Safety Act in 2010.

However, the employee’s Facebook post after his dismissal showed that he was not willing to take any responsibility for his actions nor show a willingness to avoid outbursts in the future.  The Facebook post described the workplace as a “s—hole” and said that he felt sorry for employees who still had to work “in a place with so much negativity”. He also wrote that since he was “caned” [sic] he no longer had to “concentrate on all the bull[—-] I put up with at that place for 10 years”.

In conclusion, the arbitrator decided that given the employee’s already lengthy disciplinary record and his continuing negative feelings towards the human resources manager and company, as shown by his Facebook post, dismissal was appropriate.

Service Employees’ International Union, Local 1 Canada v Specialty Care Trillium Centre, 2016 CanLII 23212 (ON LA)

Fired employee’s Facebook post calling company “s—hole” showed dismissal for workplace outbursts, threat was indeed appropriate

Shot at in parking lot, employee awarded $5,000 in damages from employer despite WSIB coverage

A labour arbitrator has awarded a unionized employee $5,000.00 in damages from his employer – despite the fact that the employer was registered with the Workplace Safety and Insurance Board.

The employee worked at a municipal community centre.  On the night of the shooting, he and four other employees went outside at around 10:30 pm to warm up their vehicles before leaving.  They lingered near their vehicles for about five minutes.  A car that had been driving back and forth in front of the community centre stopped, and two men got out and started shooting at the five employees. One worker was shot in the leg and “extensively injured”, while the employee in question was not shot, though he suffered some injuries in his effort to escape.  He did not require any immediate medical attention and did not miss any work.  He did not file a claim with the WSIB.  He still worked at the community centre.

The arbitrator noted that subsection 26(2) of the Workplace Safety and Insurance Act provides that, “Entitlement to benefits under the insurance plan is in lieu of all rights of action” that a worker has against the employer because of an accident happening to the worker in the course of employment.

The arbitrator decided that if the employee made or could have made a claim to the WSIB for lost wages, pain and suffering and/or mental distress, then the Workplace Safety and Insurance Act would bar any claim – by grievance or otherwise – against the employer for damages.  However, the arbitrator held that the employee, who suffered no lasting workplace injury, permanent impairment or loss of work hours or income, could not have made a claim to the WSIB.  As such, the Workplace Safety and Insurance Act did not bar his grievance for damages.

The arbitrator was satisfied that there was a reasonable prospect that the shootings would not have taken place had the employer satisfied its obligations under the collective agreement and Occupational Health and Safety Act to provide a safe work environment for the workers.  As such, the arbitrator awarded the employee $5,000.00 for pain and suffering and mental distress.

While the facts of this case are unusual in that the employee was not entitled to WSIB benefits but did have pain and suffering and mental distress for which he was entitled to damages, the decision shows that in some rare cases, employees with WSIB coverage could still claim damages directly from the employer.

Re Toronto (City) and CUPE, Local 79 (Charles), 260 L.A.C. (4th) 304 (Ont. L.A.)

Shot at in parking lot, employee awarded $5,000 in damages from employer despite WSIB coverage

Bill 132 Update: Ontario’s Sexual Violence and Harassment Legislation to Become Law September 8, 2016

Previously we reported on Ontario’s new sexual violence and harassment legislation, Bill 132, An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters. On March 8, 2016, Bill 132 received Royal Assent.

To recap, Bill 132 amends various existing statutes with respect to sexual violence, sexual harassment and domestic violence. For employers, Bill 132 presents important workplace-related changes, by amending the Occupational Health and Safety Act (OHSA) to require employers to implement specific workplace harassment policies and programs and ensure that incidents and complaints of workplace harassment are appropriately investigated.

First, Bill 132 expands the OHSA’s definition of “workplace harassment” to include “workplace sexual harassment”, defined as:

  1. Engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome; or
  2. Making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.

Bill 132, however, also clarifies that a reasonable action taken by an employer or supervisor relating to the management and direction of its workplace is not workplace harassment.

The Bill, as passed, requires an employer, in consultation with a joint health and safety committee or a health and safety representative (if any), to develop, maintain, and review at least annually, a written program that implements the employer’s workplace harassment policy. Further, employers must provide workers with appropriate information and instruction on the contents of their workplace harassment policies and program. An employer’s written program must set out, among other requirements:

  • measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser;
  • how incidents or complaints of workplace harassment will be investigated and dealt with;
  • how information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary for investigating, taking corrective action, or by law; and
  • how a worker who has allegedly experienced workplace harassment and the alleged harasser (if s/he is a worker of the employer) will be informed of the results of the investigation and of corrective action that has been, or will be, taken.

Further, employers must conduct appropriate investigations in response to incidents or complaints of workplace harassment. Following an investigation an employer must inform both the worker who has allegedly experienced harassment and the alleged harasser (if s/he is a worker of the employer) of the results and of any corrective action that has been, or will be, taken.

Notably, an inspector now has the power to order an employer to conduct an investigation by an impartial third party, and obtain a written report by that party, all at the employer’s expense. Bill 132, however, does not specify the circumstances in which an inspector can, or will, order an employer to conduct such an investigation.

The above- noted OHSA amendments come into force on September 8, 2016. In order to ensure compliance with the legislation, employers must take steps beforehand to update and implement policies and programs related to workplace harassment.

Bill 132 Update: Ontario’s Sexual Violence and Harassment Legislation to Become Law September 8, 2016

After Co-Worker Washes Feet With Vinegar In Cubicle and Makes Threatening Statement, Employee Entitled to Transfer to Different Building

A Quality and Service Manager working for the Parole Board of Canada is entitled to work in an entirely different building from a co-worker – identified only as “Mr. X” – because she suffered from stress caused by Mr. X’s behaviour, a grievance adjudicator has held.

In 2009, Mr. X was moved to the cubicle next to the worker’s office. The worker alleged that Mr. X constantly distracted her during the workday by loudly unpacking his bag in the morning, eating strong smelling leftovers, walking barefoot in the office, making loud guttural noises, passing gas, swearing, and washing his feet with vinegar in his cubicle. The worker also testified that on one occasion when she was on the telephone, Mr. X was making so much noise that she stood up and hit their common wall to get him to stop. Mr. X then entered her office and said “What is your problem?… there is a line on the floor and do not cross that line because I do not know what will happen…”.

The worker testified that she complained to her supervisor, and asked that one of them be moved. The employer offered mediation as a method of resolving the conflict between the two workers, but the worker refused. The worker moved offices a few months later but she was still bothered by Mr. X’s behaviour when he passed by her new office location.

Despite the worker’s office move, 8 months later, Mr. X filed a harassment complaint against her, which included allegations that she called him a pig. To read the National Post’s article on Mr. X’s harassment complaint, click here.

Once the worker learned of the harassment complaint against her, she filed a harassment complaint against Mr. X and went on sick leave from September 2011 until March 2013. During that time, the employer offered the worker the accommodation of an office on a floor that Mr. X could not access. The worker refused, claiming there was a risk that Mr. X could access the floor by riding in an elevator with someone who did have access.

In or around April 2012, the worker filed a grievance against her employer, alleging that it did not comply with its duty to accommodate because she had medical notes stating she was fit for work, but not at the building in which Mr. X worked, and she did not receive an offer of accommodation that met her medical requirements.

The worker went on secondment in March 2013 for one year (in another building), at the end of which she was supposed to return to her position with her employer in the same building as Mr. X. The worker refused to return to work because, according to her, the corrective measures sought in her grievance (teleworking or working in a different building) had not been granted.

At the hearing, the worker tried to show that Mr. X’s abusive behaviour caused her emotional stress that affected her memory and her capacity to concentrate, and that she did not feel safe working in the same building as him. The Adjudicator considered whether the employer’s proposal to move her to another floor constituted a reasonable accommodation. The Adjudicator found that, in light of the testimony of the employee’s doctor that she had a real and genuine fear and that her medical condition would not improve if she returned to the workplace, even on a different floor, the employer’s proposed accommodation was not reasonable. Further, the Adjudicator found that the employer did not satisfy her that it was absolutely necessary for the worker return to that workplace.

The Adjudicator ordered the employer to move the worker to a different building, and to compensate her for the wages and benefits she lost during her sick leave.

Emond v. Treasury Board (Parole Board of Canada), 2016 PSLREB 4 (CanLII)

After Co-Worker Washes Feet With Vinegar In Cubicle and Makes Threatening Statement, Employee Entitled to Transfer to Different Building

Teachers’ union fighting for right to refuse work due where students violent

A student’s violent acts in a classroom have led to a dispute about the circumstances in which teachers may engage in a work refusal for safety reasons.

The student was described as having a “history of violent behavior”.  He became violent one morning by hitting and pushing staff and other students and kicking chairs.  The student was sent home, but when he returned to class, the teacher said that she did not feel safe and she was removed from the classroom.  Apparently a Ministry of Labour inspector was called in and decided not to make an order respecting the teacher’s alleged work refusal.   The union challenged that decision before the Ontario Labour Relations Board. The inspector asked the OLRB to dismiss the case based on oral submissions.

The inspector relied on section 3. 3 of Regulation 857 (“Teachers) under the Ontario Occupational Health and Safety Act which provides that the work refusal provisions of the OHSA do not apply to “a teacher where the circumstances are such that the life, health or safety of a pupil is in imminent jeopardy.” The inspector argued that, therefore, a teacher may refuse to work only where he or she has reason to believe that workplace violence is likely to endanger himself or herself, but that if the violence is caused by a student, there would invariably be a risk to other students and therefore the teacher would have no right to refuse to work.

The OLRB held that it required further evidence before making a decision on the case.  In particular, the OLRB required evidence of whether a student was “in imminent jeopardy”, which could not be determined without a full hearing.  The OLRB decided to send the case to a full hearing.

Toronto Elementary Catholic Teachers / Ontario English Catholic Teachers Association v. Toronto Catholic District School Board, 2016 CanLII 6786 (ON LRB)

Teachers’ union fighting for right to refuse work due where students violent

“Presumptive remedy” for retaliatory discharge under OHSA is reinstatement of employee, OLRB states

Where an employer fires an employee for raising safety concerns, the employee will generally be entitled to reinstatement, the Ontario Labour Relations Board has stated.

The case involved a restaurant employee who sent an e-mail to the owner complaining of workplace harassment and asking for a copy of the employer’s harassment policy.  In the owner’s e-mail response, he denied the harassment. He did not give her a copy of the policy.

A few days later, the owner sent the employee an e-mail advising that the Ministry of Labour had commenced an inspection under the Occupational Health and Safety Act and asking her to meet with the employer’s health and safety committee.  The employee responded that she was willing to do so, and again requested a copy of the harassment policy.  The owner never contacted her again, and did not schedule her for any more shifts despite the employee’s repeated requests to be returned to the schedule.

The employee filed a reprisal complaint under the OHSA with the Ontario Labour Relations Board. The employer did not attend the hearing.  In the absence of an explanation by the employer, the OLRB was satisfied that at least part of the employer’s reason for ceasing to schedule her was that she had raised health and safety issues.

The OLRB stated that, “The presumptive remedy for a reprisal in contravention of section 50 of the Act is to reinstate the discharged employee and to provide the employee with lost wages from the date of the discharge up until the date of the reinstatement subject to mitigation.”

However, in this case, the employee did not want to go back to work at the restaurant.  The OLRB decided that, “Given the manner in which her employment ended, I do not find that reinstatement would be a viable remedy in the circumstances.  I agree with counsel that, in the place of reinstatement, Ms. Thompson is entitled to damages for loss of employment.” The OLRB awarded her damages of $7,437.16 for “loss of employment and loss of wages”.

Thompson v 580062 Ontario Inc (Slainte Irish Gastropub), 2015 CanLII 76907 (ON LRB)

“Presumptive remedy” for retaliatory discharge under OHSA is reinstatement of employee, OLRB states

“I guess I’d have to kill you” remark could not reasonably have been interpreted as a “viable threat”: fired worker entitled to ESA termination pay

A worker’s comment that “I guess I’d have to kill you” was clearly inappropriate but did not constitute wilful misconduct under the Ontario Employment Standards Act, the Ontario Labour Relations Board has held.  The case shows that not every comment that is, on its face, threatening will constitute just cause for dismissal. Context is important.

The worker, a machinist, got into an argument with a coworker whom he thought had taken one of his tools.   The coworker snapped at him and told him to “f— off, I don’t give a f—“.  Another worker stepped between them and told them to stop. The coworker said that if the worker hit him, he would be “put away for the rest of your life”.   The worker then chuckled and said,  ‎”I guess I’d have to kill you”. The confrontation lasted about five minutes.   The worker returned to work.

Apparently the company called the police. Two officers attended at the workplace and confronted the worker about his comment.   The company assured the worker that it would not press charges, but had the police escort him off the premises.   The next day, the company fired him, and returned his tool to him at the same time.

The worker filed a complaint with the Ontario Ministry of Labour claiming his eight weeks of ESA termination pay.   The company argued that he was disentitled because he was fired for wilful misconduct.  An Employment Standards Officer decided that the worker was dismissed for wilful misconduct and thus not entitled to ESA termination pay. The employee challenged that decision at the Ontario Labour Relations Board.

The OLRB held that the comment was very serious. However, it did not constitute wilful ‎misconduct.   Firstly, the worker was provoked by the coworker refusing to return his tool and then swearing at him. Secondly, in the context, it was not reasonable to interpret the comment as a viable threat. The worker had chuckled as he said it. He changed the subject of the conversation afterwards and then went back to work, putting an end to the confrontation.  The company had let him go back to work, suggesting that the company did not believe that he posed an ongoing threat. Thirdly, the worker had eight years of service and there was no evidence of any misconduct justifying any written or verbal warnings.

As such, the comment did not constitute wilful misconduct under the ESA, and the worker was entitled to his ESA termination pay.

Harriott v 1145365 Ontario Ltd., 2015 CanLII 79586 (ON LRB)

 

“I guess I’d have to kill you” remark could not reasonably have been interpreted as a “viable threat”: fired worker entitled to ESA termination pay

Bill 132: Ontario’s New Sexual Violence and Harassment Legislation

The Ontario Government recently introduced Bill 132, An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters as a response to the Government’s “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment” policy statement announced earlier this year.

Bill 132 will amend various existing statutes with respect to sexual violence, sexual harassment, and domestic violence. For employers, important changes will stem from Bill 132’s proposed amendments to the Occupational Health and Safety Act (the “OHSA”), which include modifying the current definition of “workplace harassment” and imposing additional obligations on employers concerning their workplace harassment policies, programs and investigations.

Under Bill 132, the OHSA’s definition of “workplace harassment” will be expanded to include “workplace sexual harassment”, which is defined as:

  1. Engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome; or
  2. Making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.

Notably, Bill 132 also clarifies that a reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.

Bill 132 will require an employer’s program to implement a workplace harassment policy under section 32.06(2) of the OHSA to further set out:

  • Measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser;
  • How incidents or complaints of workplace harassment will be investigated and dealt with;
  • That information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary for the investigation or corrective action, or is required by law; and
  • How a worker who has allegedly experienced workplace harassment and the alleged harasser (if he or she is a worker of the employer) will be informed of the results of the investigation and of any corrective action taken.

An employer will be required to renew its program at least annually and provide its workers with appropriate information and instruction on the contents of both the policy and program.

When faced with a “workplace harassment” incident or complaint, under Bill 132 an employer will be required to ensure that an appropriate investigation is conducted and that both the worker who has allegedly experienced harassment and the alleged harasser (if s/he is a worker of the employer) are informed of the results and of any corrective action that has been, or will be, taken. Notably, Bill 132 will allow an inspector to order an employer to have an investigation and report completed by an impartial third-party, at the employer’s expense.

Bill 132 passed first reading on October 27, 2015. If passed, the provisions of Bill 132 relating to the OHSA will come into force either six months after receiving Royal Assent or on July 1, 2016, whichever is the later date.

The Bill can be found here. A press release from the Ontario Government announcing Bill 132 can be found here

This article originally appeared on the Dentons blog, employmentandlabour.com.

Bill 132: Ontario’s New Sexual Violence and Harassment Legislation

When public perception and the law differ: man fired for heckling TV reporter at soccer game is rehired after arbitration process

Just because members of the public call for the firing of an employee for yelling sexual taunts at a TV reporter at a sports match, does not mean that the firing is legally justified, a recent case illustrates.

A hydro employee fired in May for hurling obscenities at at TV reporter has been rehired, according to a Canadian Press story.

The employee, an assistant network management engineer with Hydro One, was fired in connection with the incident at a Toronto FC game.  A media firestorm ensured, with many Internet commentators and others calling for his firing.  Hydro One did dismiss him, citing violations of its employee code of conduct.

It is not clear whether an arbitrator ordered Hydro One to reinstate the employee, or whether Hydro One did so as part of a settlement.

The case raises the thorny issue of when employees can be disciplined or fired for off-duty conduct.  At the very least, the employee’s rehiring shows that what may seem obvious to members of the public – that vulgar, offensive and/or harassing off-duty conduct justifies firing – may not always be legally correct.

The Canadian Press story, reported on The Globe and Mail Website, can be found here.

When public perception and the law differ: man fired for heckling TV reporter at soccer game is rehired after arbitration process

OHSA duties did not require employer to issue public response to “smear campaign” against non-racialized jail employees: adjudicator

An adjudicator has held that the Occupational Health and Safety Act‘s “general duty” clause did not require an employer to issue a public response to a “smear campaign” by one employee and his lawyer against non-racialized employees of a jail which caused them emotional stress.

The employee (a correctional officer) and his lawyer made public statements that were reported by the media.  Among the lawyer’s statements was the following, as quoted on a website and in a newspaper article:

“There is a public interest in rooting white supremacists out of a jail,” Falconer said. “Keep in mind that in addition to being in a position to harass their fellow racialized officers, these white supremacist officers are in charge of inmates, often inmates that are black.”

The statements by the employee and his lawyer were in relation to an application that the employee had commenced against the Ministry of Community Safety and Correctional Services and his union at the Human Rights Tribunal of Ontario.  The union claimed that the statements “fanned racial tension” in the workplace which had abated considerably in the past few years.

The adjudicator held that the reasonable inference to be drawn from the quoted statements was that some non-racialized correctional officers were responsible for the racist hate letters sent anonymously from 2005 onwards to mostly racialized correctional officers at the jail.

The union filed a grievance against the employer’s failure to make a public statement against the comments.  The adjudicator found that the lawyer’s statements disparaged non-racialized correctional officers because they would be associated in the public’s mind as “white supremacists”.  Some of those employees suffered emotional stress as a result, and certain of them were subjected to contempt and abuse inside and outside the jail.  They claimed that this was a health and safety issue, requiring a response from the employer.

The union’s grievance claimed that, among other things, the Occupational Health and Safety Act‘s “general duty” on employers in section 25(2)(h) to take every precaution reasonable in the circumstances for the protection of workers, required the employer to issue a public response to the statements from the worker and his lawyer, given the health and safety issues – including stress – suffered by employees as a result.  Effectively, the union’s argument was that the employer’s duties under the OHSA required it to publicly support the non-racialized employees in order to reduce their stress and the hostility that they suffered as a result of the lawyer’s statements.

The employer argued that it cannot have breached the OHSA because there is no evidence of “serious illness” resulting to any of the employees, and that serious illness must be something more than “tension, stress, irritation or unhappiness”.

The parties agreed that the employer’s conduct must be judged against the standard of reasonableness.  The adjudicator held that the employer had acted reasonably in not issuing a press response.  If the employer were to start issuing public statements in reaction to public comments on cases that were before tribunals, there would be significant policy consequences for the employer, as the Crown.

The adjudicator decided, though, that ideally the employer would have issued an internal statement through a joint union-management statement, but the employer’s approach – to deal with employees’ issues as they arose – was within the range of reasonable responses.

As such, the adjudicator dismissed the grievance.

Ontario Public Service Employees Union (Blacquiere et al) v Ontario (Community Safety and Correctional Services), 2015 CanLII 67994 (ON GSB)

OHSA duties did not require employer to issue public response to “smear campaign” against non-racialized jail employees: adjudicator

Sexual joke was “worse than the usual sexual humour of the workplace”: hydro employee was fired for cause

A hydro worker’s sexual harassment of a co-worker, including an offensive sexual joke, justified his dismissal, the Ontario Labour Relations Board has held.

The OLRB found that the employee was upset by the fact that his female co-worker was on the way to being in a supervisory position to him.  The employee set about trying to belittle and isolate the co-worker.  He made disparaging comments about her abilities.  Perhaps most concerning was his telling of “the bulldog joke” which contained sexual references which were both objectifying and disparaging of women.  The OLRB stated that, “This joke was qualitatively worse than the usual sexual humour of the workplace.”  It was reasonable for the female co-worker to experience this joke as being directed towards her, the only female present at the time.  The employee ought to have known that the joke would be extremely offensive to her.

The employee also made a comment about his wife that disparaged and objectified her and disparaged women in general.  In disparaging women, the employee sent the message to others that his female co-worker did not belong on the worksite.

Interestingly, the union argued that the fact that the co-worker had asked to be treated as “one of the guys” was a “mitigating factor” suggesting that the employee’s conduct was not as serious.  The OLRB disagreed, stating that the female co-worker wanted – and was entitled to – “fair opportunity, fair treatment and fair acceptance”.

The OLRB held that the employee engaged in a course of conduct of sexual harassment and bullying behaviour towards his female co-worker.  His actions could not be viewed as a series of isolated incidents.  Further, over his 3 1/2 years with the company, he had been insubordinate time and again. In conclusion, the OLRB held that the employer had just cause for immediate dismissal of the employee.

Labourers’ International Union of North America, Ontario Provincial District Council and Labourers’ International Union of North America, Local 493 v Hydro One Networks Inc., 2015 CanLII 63834 (ON LRB)

 

Sexual joke was “worse than the usual sexual humour of the workplace”: hydro employee was fired for cause

OLRB orders employer to reinstate apartment building superintendent allegedly fired for reporting workplace violence

The Ontario Labour Relations Board has ordered an employer to reinstate an apartment building “office administrative superintendent” who alleged that she was fired after reporting that her husband, the maintenance superintendent at the same building, threatened their daughter and was about to hit her.  They resided in an apartment in the building.

Importantly, the employer did not file a Response to the employee’s OLRB Application, meaning that the OLRB’s decision was of a “default nature”.

The employee alleged that after she reported the incident of workplace violence, the property manager told her to “calm down” and not to call the police, and that she should “let it go” and forgive her husband.  The employee moved to a temporary shelter and reported the matter to police.  Her husband was arrested by police and was also fired by her employer.

The employee stated that she was without income, and would be required to change her daughter’s school.  The OLRB found that on the basis of the facts pleaded by the employee, she was “in a highly vulnerable and precarious position”.  Her allegations provided an “arguable case” that she was fired for asking the employer to comply with its workplace violence obligations under the Occupational Health and Safety Act; she had shown that she would suffer harm and real prejudice if she were not reinstated; and the employer had not provided any evidence that it would suffer prejudice or harm if she were reinstated pending the final determination of her safety-reprisal complaint.

As such, the OLRB decided to order the employer to reinstate the employee to her job “forthwith on the same terms and conditions” (which would, it appears, also require the employer to give her back her apartment in the building) pending the final outcome of the employee’s safety-reprisal case.  If nothing, else, this case demonstrates why employers should file a Response to all safety-reprisal claims made against them.

A.A. v B.B. Ltd., 2015 CanLII 53737 (ON LRB)

 

OLRB orders employer to reinstate apartment building superintendent allegedly fired for reporting workplace violence

Employee properly fired for workplace violence threats, despite his mental disability: Appeal Court

An employee’s mental disability, unknown to his employer at the time of dismissal, played no role in the reason he was fired.  He was fired because he made violent threats against coworkers, the Ontario Court of Appeal has held.

Although the employer had been accommodating of the employee’s “various ‘disabilities’ he reported to them over time: his alcoholism, his thyroid and cardiac issues”, the employer was unaware of his “mental disability” and did not engage in discriminatory conduct in firing him for workplace violence. The court stated, “They fired him as they would any employee who engaged in such workplace misconduct.”

The Ontario Court of Appeal quoted the following statement of the British Columbia Court of Appeal in British Columbia (Public Service Agency) v. British Columbia Government and Services Employees’ Union, 2008 BCCA 357 (CanLII) in which an alcoholic employee was fired for theft:

“I can find no suggestion in the evidence that Mr. Gooding’s termination was arbitrary and based on preconceived ideas concerning his alcohol dependency. It was based on his conduct that rose to the level of crime. That his conduct might have been influenced by his alcohol dependency is irrelevant if that admitted dependency played no part in the employer’s decision to terminate his employment and he suffered no impact for his misconduct greater than that another employee who suffered for the same misconduct.”

Bellehumeur v. Windsor Factory Supply Ltd., 2015 ONCA 473 (CanLII)

Employee properly fired for workplace violence threats, despite his mental disability: Appeal Court

Snowplow driver dismissed due to two accidents, not workplace violence “head-butting” complaint

A snowplow driver’s bad driving record, not his workplace violence complaint, was the reason for his dismissal, the Ontario Labour Relations Board has decided.

Vehicle safety and safe road conduct were important to the employee’s employer, a contractor.  In January 2015, the employee had a single vehicle accident while driving the snowplow, which spun around, crossed the road and landed in the ditch on the opposite side of the road.  Three weeks later he had another single vehicle accident; while he was driving the snowplow partially off the asphalt, he drove into the ditch. The two accidents cost the company more than $20,000.00.

After the second accident, the police and fire department arrived.  Shortly afterwards, three employees of the company arrived.  The employee and one of his coworkers had a verbal altercation.  The employee claimed that his coworker “head-butted him in the face”.  However, when the employee was taken to the hospital he initially reported to hospital admissions that he had hit his face on the door of the truck. A few days later, the company dismissed him.

The employee claimed that he was dismissed in retaliation for raising safety issues (the head-butt incident, which he said was workplace violence).  The OLRB dismissed the complaint, noting that the employer had investigated the incidents and had decided, in good faith, that the employee was at fault.  After the first incident, the employer gave him a “final warning”.  The OLRB was satisfied that the decision to dismiss him was based solely on the “at fault” accidents.

Fotak v Fermar Paving Ltd., 2015 CanLII 46915 (ON LRB)

Snowplow driver dismissed due to two accidents, not workplace violence “head-butting” complaint