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WSIB benefits to be available in Ontario for “chronic or traumatic mental stress” starting in 2018

Ontario has amended the Workplace Safety and Insurance Act to make WSIB benefits available for “chronic or traumatic mental stress” arising from the workplace, starting January 1, 2018. There will be no retroactive application.

The amendments provide, however, that:

“A worker is not entitled to benefits for mental stress caused by decisions or actions of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.”

As with any type of workplace injury, in order to obtain WSIB benefits for mental stress, the worker must show that the mental stress “arises out of and in the course of” the worker’s employment.  To obtain WSIB benefits for mental stress, the worker must also prove that the mental stress was “chronic” or “traumatic”.

The WSIB has released a draft policy on chronic mental stress and invites comments before July 7, 2017.

Of course, workers employed by employers that are not registered with the WSIB (and not required to be registered) will not be entitled to WSIB benefits for workplace mental stress.

One expects that this change will result in a significant number of claims to the WSIB, since “job stress” is a commonly-raised issue.  Some of those claims might otherwise have manifested themselves as workplace harassment complaints (under the employer’s workplace harassment policy), a harassment application to the Human Rights Tribunal of Ontario, a union grievance, or a claim to the employer’s group benefits insurer under a group long-term disability insurance plan.

A Workplace Safety and Insurance Appeals Tribunal decision in 2014 had determined that the current workplace mental stress provisions of the Workplace Safety and Insurance Act violated the Canadian Charter of Rights and Freedoms in that they discriminated against workers with mental disabilities.  The amendments appear to be, at least in part, a response to that decision.

The section of the Bill that relates to amendments to the Workplace Safety and Insurance Act may be read here.

 

 

WSIB benefits to be available in Ontario for “chronic or traumatic mental stress” starting in 2018

Court orders condo owner who harassed building management staff to cease and desist. OHSA harassment provisions applied

A condominium owner who called building management staff offensive and degrading names has been ordered by a judge to cease and desist from harassing them. The decision shows that the Ontario Occupational Health and Safety Act’s harassment provisions can require an employer to take steps to end harassment by third-parties.

The condo owner frequently and persistently emailed staff.  She also called them degrading names such as “obscenely obese”, “massive hulk” and “tubbo”. She suggested that she was deeply concerned about the management of the building.

The condominium corporation sought a cease-and-desist order from the court. The judge noted that the owner’s “verbal barrage has made work life intolerable” for the staff. The judge described her communications as “antisocial, degrading and harassing”.  Her conduct was workplace harassment under the OHSA. It was clearly unwelcome, and the employer had a legal duty under the OHSA to investigate it.

The judge ordered the condo owner to “cease and desist from uncivil or illegal conduct that violates the Condominium Act or the Rules” of the condo corporation. The judge also ordered her to pay the condo corporation $15,000 for its legal costs in the court proceeding.

York Condominium Corp No 163 v Robinson, 2017 ONSC 2419 (CanLII)

Court orders condo owner who harassed building management staff to cease and desist. OHSA harassment provisions applied

Bullied to death? PEI WCB awards benefits to widow after finding a link between workplace bullying and fatal heart attack

The Workers Compensation Board of Prince Edward Island recently awarded WCB benefits to the widow of a worker who died of a heart attack in November 2013. The worker had suffered a workplace back injury a few months earlier and had recently returned to work. According to the widow’s submissions to the WCB, the worker was bullied at work by his supervisor and did not feel he was receiving the proper support from his employer.

The worker’s family had initially approached the WCB about the availability of benefits, but were advised that because the death was not caused by a workplace injury, benefits were not available to them. The worker’s estate, widow and children subsequently commenced a court action against the employer and supervisor claiming damages. The claim alleged that the worker died from heart failure as a result of workplace bullying, and that the work conditions led to stress, anxiety and physical symptoms which ultimately caused his fatal heart attack.

The Supreme Court of PEI initially dismissed the action on the basis that it did not have jurisdiction as there was a collective agreement in place that governed, and so there were other remedies available to the plaintiffs including grievance arbitration and a WCB claim. On appeal, the PEI Court of Appeal reversed the decision, finding that the PEI Fatal Accidents Act did give the Court jurisdiction over the claim brought by the dependents. The Court of Appeal also considered whether a stay was appropriate on the basis that the claim was within the jurisdiction of the Workers Compensation Act. However, the Court was unable to decide that issue on the limited record, reminding the parties that the WCB can adjudicate and determine whether a right of action is removed by the Workers Compensation Act.

The plaintiffs returned to the WCB seeking a determination. The WCB confirmed that a workplace accident could include bullying and harassment. After receiving submissions from the parties, the WCB determined that the worker’s death was linked to workplace bullying and harassment, thus entitling the widow to benefits. The employer has filed an appeal with the WCB so this is likely not the last word.

While WCB policies may vary across the country, the basic premise behind WCB benefits is the same – the historic trade off whereby employers fund a no-fault insurance scheme to compensate injured workers for workplace injuries and in return, workers give up the right to sue the employer. In order for a claim to be compensable, there must have been a workplace accident.

In Alberta, the WCB’s cardiac policy states that in order for cardiac claims to be compensable:

  • there must be evidence of occupational exposure to factors or events known or presumed to be associated with heart problems; and
  • the time period between the occupational exposure and the onset of the cardiac condition is such that a relationship can be established.

The policy also list some examples of occupational exposures which can cause cardiac conditions, including psychological causes, involving exposure to significant and acute psychological stress.

Therefore, while the PEI decision appears to be a unique case, with the proper facts and medical evidence, and the relatively recent focus on issues of workplace bullying, we can expect to see more claims for benefits relating to workplace bullying and harassment. In the meantime, employers should ensure that they have (and follow!) appropriate policies and procedures in place to address workplace bullying and harassment.

The Court of Appeal decision can be found here.

 

Bullied to death? PEI WCB awards benefits to widow after finding a link between workplace bullying and fatal heart attack

“Your ugly face”: employer’s condescending, aggressive, hostile and profane behaviour in one meeting resulted in constructive dismissal. Nurse awarded 24 months in damages

The Ontario Court of Appeal has upheld a 24-month damage award to a long-service nurse in a doctor’s office who believed that she had been fired during a hostile meeting with her employer.

The doctor for whom she worked wanted her to look into electronic medical records (EMR).  She was overwhelmed with a heavy workload and did not get to it.  The doctor angrily confronted her in a meeting, at which the doctor’s wife was also present.  The court found that the doctor, in his anger, said, “Go! Get out! I am so sick of coming into this office every day and looking at your ugly face.”  He also pointed at her, shouted at her, accused her of being resistant to change, and used profanity during that meeting.  The employee, distraught, left the meeting and never returned to work. The employer treated her as having quit. The employee sued for wrongful dismissal.

The trial judge decided that although the doctor did not intend to dismiss the nurse, he did in fact fire her when he told her to “Go! Get out!”

Even if the doctor had not fired the employee, he had constructively dismissed her, the trial judge stated.  Although the meeting was only one incident, it was sufficient to constitute a constructive dismissal.  The trial judge wrote:

“An employer owes a duty to its employees to treat them fairly, with civility, decency, respect and dignity.  An employer who subjects employees to treatment that renders competent performance of their work impossible, or continued employment intolerable, exposes itself to an action for constructive dismissal.  Where the employer’s treatment of the employee is of sufficient severity and effect, it will be characterized as an unjustified repudiation of the employment contract.”

The trial judge found that the doctor’s behaviour was condescending, aggressive, hostile and profane.  His conduct diminished the nurse’s stature and dignity in the office.  When the doctor saw the emotional impact that his comments had on her at the meeting, he did nothing.  He had made her continued employment intolerable, and effectively destroyed the employment relationship.

The trial judge awarded this 22-year employee 24 months’ salary in damages for wrongful dismissal.  The appeal court upheld this award.

The trial judge’s decision can be read here, and the appeal court’s decision here.

 

“Your ugly face”: employer’s condescending, aggressive, hostile and profane behaviour in one meeting resulted in constructive dismissal. Nurse awarded 24 months in damages

Threats of violence, one day after “sensitivity training”, get worker fired for cause. He “may have a problem with women in the workplace, especially women managers”, says arbitrator

A worker who said, “If anything ever happened, like losing my job, I’d have no problem coming in here and shooting them”, a day after receiving sensitivity training relating to workplace violence, was dismissed for cause, an arbitrator has decided. The worker, a fare collector, had taken the training after giving the finger to an “obstreperous customer”.

He made the “shooting them” threat while speaking with a coworker about the materials from the training session, to which he remarked, ” Can you believe this?”  After the coworker tried to make light of the situation, the worker said that he would kill only managers, not union employees.

The coworker reported the threat to management, who then fired the worker, who filed a union grievance.

The arbitrator found that the worker had made the threat, despite the worker’s denial.
The coworker had no motive to make false allegations. The two employees had had a friendly relationship.

Despite the worker’s 25 years of service, the arbitrator decided that the employer had just cause for dismissal. The worker never admitted the threats nor apologized. He had a disciplinary history including discipline for an incident in which he was unable to control his anger. Significantly, he made the threats one day after taking sensitivity training designed to help him control his anger and understand the seriousness of workplace violence. He also had an unfounded view that female employees were conspiring to get him, showing that he “may have a problem with women in the workplace”.  All of these factors “did not bode well for the future” were he to be reinstated.

Toronto Transit Commission v Amalgamated Transit Union, Local 113, 2017 CanLII 11071 (ON LA)

Threats of violence, one day after “sensitivity training”, get worker fired for cause. He “may have a problem with women in the workplace, especially women managers”, says arbitrator

“Repeated exposure to supervisor constituted a dangerous situation”, employee arguing

The Federal Court has breathed new life into a government employee’s claim that “repeated exposure to her supervisor constituted a dangerous situation” that justified her work refusal under the Canada Labour Code.  The case is a good example of how workplace harassment / violence complaints that appear trivial on their face can turn out to cause the employer significant headaches.

The employee was unhappy with the employer’s investigation.  The matter was then referred to a federal Labour Affairs Officer who concluded that the existing situation constituted a danger for the employee.  He recommended that the Labour Program’s Regional Director order the employer to take immediate action to correct the situation.

However, the Regional Director “refused to investigate” the work refusal, reasoning that the employee’s concerns would be more appropriately dealt with under the Public Service Labour Relations Act because of the grievances that the employee had already filed under that Act.  The Regional Director told the employee that she was no longer entitled to refuse to be in the direct or indirect presence of her supervisor.

The court decided that the Regional Director’s decision was unreasonable.  Given that the Labour Affairs Officer had already investigated the work refusal, the Regional Director had only three options under sections 129(4) and 128(13) of the Canada Labour Code: “1) agree that a danger exists; 2) agree that a danger exists but consider that the refusal puts the life, health or safety of another person directly in danger or that the danger is a normal condition of employment; and 3) determine that a danger does not exist.”  The court also stated that even if the Labour Affairs Officer had not already investigated the work refusal, the Regional Director’s decision “was not justified, transparent or intelligible as it lacked any explanation as to why” the grievance under the Public Service Labour Relations Act was a more appropriate process to deal with the employee’s allegations of danger.  It was also unclear as to why the Regional Director diverged from the Labour Affairs Officer’s decision.

As such, the court concluded that “the Regional Director’s decision lacks justification, transparency and intelligibility and as such, it is unreasonable and does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.

The court set aside the decision of the Regional Director and sent the matter back to the Minister of Labour or her delegate for reconsideration.  The court awarded the employee $4,500.00 in legal costs.

Karn v. Canada (Attorney General), 2017 FC 123 (CanLII)

“Repeated exposure to supervisor constituted a dangerous situation”, employee arguing

Industrial safety specialist properly fired for lying on security application

An Ontario judge has decided that Atomic Energy of Canada Limited had just cause to dismiss an industrial safety specialist who misrepresented his employment history in a security application.

AECL operates nuclear research facilities.  It runs security checks that are mandated by the Government of Canada, including obtaining site security clearances for new employees.

AECL received harassment complaints against the employee.  During the investigation, it came out that the employee had been employed at the time AECL hired him. However, during the hiring process, he had indicated on a security questionnaire, and in an e-mail when specifically asked, that he was unemployed.  This was false. AECL fired him.

The employee sued for wrongful dismissal.  In the course of the lawsuit, he offered five different explanations for why he lied to AECL about his employment status.

The court decided that AECL had just cause to dismiss the employee.  AECL was not a “regular employer”, and the pre-employment security checks were “tied to the security of the nation”.  The court stated, “It is in this national security context that the plaintiff misled his employer”.  He had “engaged in a most serious form of dishonesty and, standing on its own, it was irreconcilable with sustaining his employment relationship with AECL.  It is dishonesty that went to the core of the employment relationship and he was terminated with cause.”

Aboagye v Atomic Energy, 2016 ONSC 8165 (CanLII)

 

Industrial safety specialist properly fired for lying on security application

Court refuses small-town mayor’s OHSA-based request for injunction prohibiting resident from harassing her

An Ontario judge has rebuffed a small-town mayor’s attempt to use the Occupational Health and Safety Act‘s violence and harassment provisions to obtain a court order stopping a town resident from harassing her.

The mayor claimed that the resident had engaged in workplace harassment and violence, contrary to the OHSA, by sending her numerous “increasingly abrasive” letters and emails in which he made pejorative statements about the mayor and made comments about the “unprofessional conduct” of the town. The resident was apparently “interested in horticulture and town beautification” and had concerns about the management of the town’s affairs.

The court decided that the evidence did not support a finding that workplace violence had occurred.  There was just one allegation that the resident had verbally harassed the mayor during an encounter at the town health unit, where the mayor held a full-time job, in 2014.  Also, the judge stated that it was doubtful that the harassment policy or the OHSA’s harassment provisions were ever intended to apply to persons who are not part of the “workplace”.  The judge decided that in this case, the resident was not a coworker, so the harassment policy did not apply to his actions.

The mayor and the town were therefore not entitled to an “injunction” order from the court prohibiting the resident from communicating with, harassing or publishing any information about the mayor or any other town councillor or employee.

Rainy River v Olsen, 2016 ONSC 8009 (CanLII)

Court refuses small-town mayor’s OHSA-based request for injunction prohibiting resident from harassing her

Psychological harassment arbitration adjourned because employee awarded worker’s compensation benefits

An employee who received worker’s compensation benefits for “psychological injury due to harassment” has had her union harassment grievance, against her employer and supervisor, adjourned.

The employee claimed that her supervisor had harassed her at work by “singling her out, questioning her abilities, criticizing her use of sick leave, threatening her job, refusing to provide her equivalent training provided to others, making serious allegations with respect to her work performance, and accusing her of killing patients, in circumstances in which the employer knew or reasonably ought to have known these events were occurring.”

In her union grievance, she asked the labour arbitrator to remove her supervisor from the workplace, and claimed damages totaling $100,000 from him and her employer.

The arbitrator noted that the Saskatchewan Workers’ Compensation Act provides that “No employer and no worker or worker’s dependant has a right of action against an employer or a worker with respect to an injury to a worker arising out of and in the course of the worker’s employment”.  The Act also provided that the Workers’ Compensation Board had exclusive authority to decide whether, in any particular case, an employee did not have the right to sue the employer in respect of the injury.

The arbitrator, relying on a previous court decision in another case, decided that the WCB, and not the arbitrator, had authority to decide whether the employee could advance the union grievance claiming damages for the psychological injury allegedly caused by harassment. The employer had already applied to the WCB for a decision on that issue. The  arbitrator urged the parties to seek a “timely decision” from the WCB.  The arbitrator adjourned the grievance arbitration until the WCB had decided whether the employee had the right to claim damages at arbitration for her workplace psychological injury.

Saskatoon Regional Health Authority v SEIU West (Erosa-lopez), 2016 CanLII 95946 (SK LA)

Psychological harassment arbitration adjourned because employee awarded worker’s compensation benefits

Work refusal due to second-hand smoke was not properly investigated: arbitrator

A correctional officer with sinusitis and sensitivity to second-hand smoke was entitled to have her work refusal investigated by prison management, an arbitrator has decided.

Although the prison was a non-smoking facility, prisoners would smuggle in contraband cigarettes. There was an “informal arrangement” in place under which the correctional officer could be moved to a different area of the prison if she detected second-hand smoke.

At the time of her work refusal, there was labour unrest at the prison including “mass work refusals”. She refused to work because she “believed that she would be exposed to second-hand smoke”.  She was directed to wait in the lunchroom, where she waited several hours and heard nothing from management.  She, however, made no concerted effort to contact management about the status of her work refusal.

The arbitrator stated:

” . . . I fail to see why the Employer could not have initiated and completed an investigation of CO Gough’s work refusal during the course of her 12-hour shift on September 7, 2014.  It is not clear to me for example why a stage 1 investigation could not have been conducted by the Employer later in the afternoon, rather than the information gathering meeting that was held by DS Large.  CO Gough’s single work refusal was not that complicated and I would have thought that an investigation of it would have been relatively brief and could have been completed before the end of her shift.  In considering all of the circumstances of that day, I find that the Employer’s failure to conduct an investigation of CO Gough’s work refusal on September 7, 2014, was not reasonable and that this failure amounts to a contravention of section 43 (3) of OHSA.”

The arbitrator, however, rejected the union’s argument that the way the employer handled the work refusal constituted harassment.  There was no evidence of bad faith on the part of the employer.

Lastly, the arbitrator decided that the proper remedy was simply “declaratory relief”: a declaration from the arbitrator that management failed to investigate the work refusal and thereby violated the Occupational Health and Safety Act.  However, the correctional officer did not experience any harm that would justify an award of monetary damages.

Ontario Public Service Employees Union (Gough) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

 

Work refusal due to second-hand smoke was not properly investigated: arbitrator

Christmas party incident of sexual harassment leads to dismissal, then reinstatement, of firefighter

A male firefighter who had been “drinking heavily” has won reinstatement to his job after being fired for sexually harassing a female coworker at the fire department’s Christmas party.

The Christmas party was held at a restaurant. The male firefighter, a Captain at a fire station, told the female colleague that he thought she would get pregnant if she transferred to his fire station.

The female colleague later alleged that he had said that she would get raped and become pregnant if she transferred to his fire station.  The arbitrator did not accept this allegation and concluded that the female firefighter had misheard or misunderstood the male firefighters.  The union, however, admitted that if the arbitrator found that the male firefighter had threatened the female firefighter with rape, the City would have just cause to fire him.

The arbitrator stated:

“I accept the Grievor’s evidence that he does not recall using the word [“rape”] and it would not be something that he would say. I acknowledge that the Grievor had a number of drinks that night and was being offensive. But the Grievor’s comments were more directed towards Firefighter A [the female firefighter] being involved socially or sexually with other firefighters, and not directed at Firefighter A being assaulted.

“While it is true that the Grievor clearly mentioned Firefighter A getting pregnant, he was also talking about rumour and gossip surrounding her relationship with other firefighters.”

According to the arbitrator, even if the male firefighter had used the word “rape”, there was clearly no intention of uttering a threat, and the female firefighter testified that she did not believe that the male firefighter was threatening to rape her.  The arbitrator stated, “I believe it is more probable than not that the Grievor only made some offensive comments about Firefighter A’s involvement with Firefighter Hefferman.”

In the end, the arbitrator reinstated the male firefighter with a three-month unpaid suspension, and demoted him to the rank of first class firefighter for a period of time to be agreed by the parties. The arbitrator also ordered that the male firefighter participate in “sensitivity and anti-harassment training”.

Corporation of the City of Brampton v Brampton Professional Firefighter’s Association, Local 1068, 2016 CanLII 87624 (ON LA)

 

Christmas party incident of sexual harassment leads to dismissal, then reinstatement, of firefighter

Arbitrator finds employer violated OHSA workplace-violence obligations

A labour arbitrator has found that a mental health organization violated the Occupational Health and Safety Act when it failed to take certain workplace-violence precautions.

The organization provided services to persons with mental health issues, including securing housing.

A Case Manager with the organization became aware that a client had sent another client a text suggesting that he wanted to sexually assault the employee.  The organization decided to bar the client from contact with the employee and from attending drop-in sessions. Nevertheless the client attended drop-in sessions on at least two subsequent occasions.

The arbitrator found that the organization did not have any means of preventing a client from texting another client an offensive text that threatened an employee.  However, the organization, having barred the client, failed to ensure that the client “heeded the injunction” and stayed away. That was a violation of the OHSA.  There was no evidence that the employee encountered the client at any of the drop-ins after he was barred, so there was no basis for an award of damages.

In a second incident, the employee reported that she felt threatened by a client.  The employee’s notes included references to the client “‘leaning over writer’, ‘shouting about aliens’, invading her personal space ‘as he kept tapping her on the knee’, becoming ‘extremely agitated’, leaning over the Grievor, speaking about eating humans and making ‘a sudden strangling gesture towards [the Grievor]’, referring to having been on probation in connection with charges of sexual assault of a woman, ‘leaning over [the Grievor] in an aggressive manner and she had to push him back away from her’, being told by the Grievor that his behaviour was threatening and that he does not respect her personal space, ‘advancing towards [the Grievor] on a couple of occasions screaming about aliens, homosexuals and radiation, invading the Grievor’s personal space, and, finally, charging the Grievor, pushing her forcefully in the chest, and causing her to lose her balance.’

The organization directed the employee to stay out of that client’s residence based on her perception of a threat, but she ignored that direction.  The arbitrator decided that the organization had violated the OHSA by failing to ensure that the employee complied with the employer’s direction. Again, no damages were warranted, but the arbitrator granted a “declaration” that the employer had breached the OHSA.

Ontario Public Service Employees Union, Local 548 v Cota Health, 2016 CanLII 81970 (ON LA)

Arbitrator finds employer violated OHSA workplace-violence obligations

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