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Despite Having WSIB Coverage, Worker Permitted to Sue “Physically Demonstrative” Executive Officer who “Massaged” her Neck

Physically demonstrative managers beware: your company’s workers compensation coverage does not necessarily protect you from lawsuits by employees.

Even though her employer had Workplace Safety and Insurance Board coverage, an employee was entitled to bring a lawsuit against an executive who “massaged” her neck, allegedly injuring her, Ontario’s Workplace Safety and Insurance Appeals Tribunal has ruled.

However, the Workplace Safety and Insurance Act prohibited her from suing her employer for the neck injuries.

The employee alleged, in her court action, that the executive officer had injured her when he manipulated her head and neck without her consent, thereby committing assault and battery. The worker had a prior neck condition affecting her shoulder.

The executive officer was known to be physically demonstrative and had been warned by the employer’s human resources manager not to touch employees or customers unless it was necessary.

The WSIAT decided that because the employee was in the course of her employment at the time of the injury, she could not sue the employer.

However, she would be permitted to sue the executive in the courts if she could prove that he was not acting in an employment-related capacity when he massaged her neck.

The WSIAT decided, on the facts of this case, that in administering the massage, the executive “deviated substantially from his regular activity as an executive officer”. The conduct had nothing to do with his work duties, which was shown by the warning from the human resource manager. As such, he was not acting in an employment-related capacity when he massaged her neck, and the employee was permitted to sue him in the courts.

Decision No. 727/13, 2014 ONWSIAT 1128 (CanLII)

Despite Having WSIB Coverage, Worker Permitted to Sue “Physically Demonstrative” Executive Officer who “Massaged” her Neck

“Discipline” included “dismissal”: employer did not breach safety-reprisal settlement when it dismissed employee after harassment investigation

An employer that dismissed an employee after a harassment investigation did not breach a previous safety-reprisal settlement with the employee, the Ontario Labour Relations Board has held.  In effect, the employer never promised not to dismiss the employee.

The employee had previously filed a safety-reprisal Application against the employer at the OLRB which was settled. The settlement terms stated that the employee was aware that a harassment complaint had been made against him, that the employer intended to retain an external investigator, and that the investigation “may result in discipline”.

After the harassment investigation was concluded, the employer dismissed the employee. The employee then filed a breach-of-settlement Application with the OLRB claiming that there had been no discussion that “discipline” could include “dismissal”.  He said that, instead, there had been a “common understanding” that some form of discipline may result from the harassment investigation, but that the purpose of the discipline would be to correct any misconduct and ensure adherence to company rules and policies.

The OLRB decided:

“The applicant asserts no facts that would lead the Board to conclude that the parties meant to exclude termination as a possible disciplinary response by Brose.  The applicant does not say, for example, that he received an assurance from Brose in the lead-up to the settlement that Brose would refrain from terminating him, or that the range of any possible disciplinary response would exclude termination.  The plain words of the settlement do not qualify the term ‘discipline’.  And as I have pointed out, Brose’s anti-harassment policy specifically contemplates termination as a possibility where harassment is found to have occurred.”

Interestingly, in coming to its decision that “discipline” included “dismissal”, the OLRB noted that the company’s policy on Harassment in the Workplace stated that employees found to have engaged in harassment “will be subject to discipline up to and including termination” – commonly-used wording in employment policies.  This wording suggested that, at least at this company and at least with respect to harassment, termination was a “subset of dismissal”.

Jeffery v Brose Canada Inc, 2014 CanLII 49707 (ON LRB)

“Discipline” included “dismissal”: employer did not breach safety-reprisal settlement when it dismissed employee after harassment investigation

No OHSA Charges Laid in Death of Alberta Youth Home Worker

A 19-year-old has pleaded guilty to second-degree murder after he stabbed to death a youth worker at a supported independent living facility in Alberta in 2012.  At the time of her death, the worker was working alone overnight.  The boy was a resident of the home, which taught life skills to teens.

The Canadian Press reports that although Alberta Occupational Health and Safety investigated the death and provided the results of its investigation to the Crown, the Crown did not pursue any charges under the Occupational Health and Safety Act (see Teen who stabbed Alberta youth home worker pleads guilty to second degree murder).

According to the Edmonton Journal, the worker’s family has launched a lawsuit against the Government of Alberta in which they allege that her employer “failed to meet the standards of the Occupational Health and Safety Act and ‘intentionally, recklessly and negligently’ failed to make sure” that the worker was safe at work (see Family of slain Camrose caregiver sues Alberta government).

No OHSA Charges Laid in Death of Alberta Youth Home Worker

No damages awarded for unforeseeable workplace assault, but employer ordered to rewrite harassment policy

The fact that an employee had engaged in harassment did not make it foreseeable that he would assault a coworker, a labour arbitrator has held.  However, the company’s harassment policy was deficient and needed to be rewritten.

The decision arose from a union grievance alleging that the employer had not provided an injury-free workplace.  An employee, Kryzanowski, alleged that another employee, Wilson, had struck him in the head from behind with a “rather substantial sized plastic lunch pail”. The union alleged that the company had breached the collective agreement and the Saskatchewan Occupational Health and Safety Act because of its actions or inactions both before and after the incident.

The arbitrator stated that there was no doubt that the assault constituted harassment as defined in the OHSA.  ”A serious physical assault, such as this one, is perhaps the most profound single incident of harassment that exists.”  However, according to the arbitrator, the core question was whether the company, through its management personnel and supervisors, knew or should have known that Wilson was a physical threat to other employees and failed to take steps to prevent it.

The arbitrator decided that although Wilson had demonstrated “meanness and bullying” behaviour towards Kryzanowski through numerous disrespectful comments, and the company’s management were sufficiently aware of Wilson’s conduct to know that he was mean-spirited and had anger problems, none of his previous actions were physical alterations and there was no evidence that he was on the verge of physically attacking a fellow employee.  The assault was not foreseeable by the company.

As such, Kryzanowski was not entitled to damages for the assault.  However, the company was ordered to keep Wilson and Kryzanowski on different shifts and direct Wilson to have no contact with Kryzanowski.

Lastly, the arbitrator found that the company’s harassment policy did not comply with the OHSA and regulations in that it was not kept current and did not include specific contents required by the regulations.  The arbitrator ordered the company to “take immediate steps to comply with the Occupational Health and Safety Act by writing its harassment policy to be compliant with the Act and regulations.”

Shaw Pipe Protection Limited v Construction and General Workers’ Local Union No 180, 2013 CanLII 94439 (SK LA)

No damages awarded for unforeseeable workplace assault, but employer ordered to rewrite harassment policy

“Don’t worry about me, I carry weapons”: employee’s violent statements warranted serious discipline but not dismissal

An electrician’s comment, “Don’t worry about me, I carry weapons” and “it would really feel good to kill something today” constituted workplace violence but did not warrant dismissal, the Ontario Labour Relations Board has held.

The employee had a strained relationship with an Electrical Foreman.   When a female co-worker noticed her in distress about the presence of the foreman, she offered to accompany the employee to the washroom. The employee then made the “weapons” comment, afterwards saying that she was referring to the tools that she carries such as an electrician’s knife and spud wrench, but that she would never harm anyone except to defend herself.  Later in the day, in a meeting with her supervisor and union representatives, she complained again about the foreman and said that she “had a knife”.

An investigator concluded that the employee had made “violent comments” and was emotionally unstable.

The OLRB decided that the employee’s comments “could reasonably be interpreted to constitute a threat to exercise injurious or potentially injurious physical force.”  However, there was nothing premeditated about the threats and there was no previous pattern of threatening conduct on her part. She was “guilty of having engaged in violent threats, but in comparing them with the kinds of behaviour in the cases cited to me by both parties, her comments were at the lower end of the spectrum.” 

The OLRB did not believe that the employee was likely to repeat “such extreme conduct” or that she was a threat to the safety and well-being of other employees.  The dismissal was, therefore, excessive.

Canadian Union of Skilled Workers v Hydro One Inc, 2014 CanLII 44660 (ON LRB)

“Don’t worry about me, I carry weapons”: employee’s violent statements warranted serious discipline but not dismissal

Alleging panic attacks due to mistreatment at work, employee’s HRTO application dismissed for duplicating court action

Employees may not raise the same human rights issue before the Human Rights Tribunal of Ontario and the courts, a recent HRTO decision confirms.

The employee had commenced a court action in which he claimed that he was a person with a disability and as a result he experienced panic attacks.  He alleged that he had experienced panic attacks in part because of mistreatment at work.  He made essentially the same allegations in a disability-discrimination case at the HRTO, claiming damages for alleged violations of the Human Rights Code in both cases.

The HRTO dismissed his human rights Application, deciding that because the employee had started a court action claiming damages for alleged violations of the Human Rights Code and that court proceeding had not been finally resolved, section 34 of the Human Rights Code required that the HRTO proceeding be dismissed.  Duplicative proceedings were not permitted.

Toker v. 1044765 Ontario Inc., 2014 HRTO 1159 (CanLII)

Alleging panic attacks due to mistreatment at work, employee’s HRTO application dismissed for duplicating court action

Reprimands for “violation of basic safety protocols” were not discriminatory

After failing in a harassment grievance that was based on the Occupational Health and Safety Act, an employee has failed in his bid to persuade the Human Rights Tribunal of Ontario that safety-related discipline against him was discriminatory under the Human Rights Code.

The employee’s union grievance had alleged bullying and harassment against the supervisor under the Occupational Health and Safety Act; the grievance had been denied.

In his Human Rights Tribunal application, the employee alleged that, in one incident, his supervisor yelled at him about wearing proper safety equipment because he did not have his safety boots on. The employee felt that the safety boots were not necessary.  After another incident, the supervisor gave him a letter about the need to wear appropriate safety equipment.  The employee claimed that, in yet another incident, the supervisor had berated him, called him stupid, and threatened him with being fired.

The Human Rights Tribunal stated that it does not have a general power to deal with allegations of unfairness.  The Tribunal found no link between the alleged actions of the supervisor and any prohibited ground of discrimination under the Human Rights Code (such as sex, race or disability).  It was clear that the relationship between the employee and his supervisor was fraught with tension, and that he had been reprimanded for violation of basic safety protocols, but there was no cogent evidence to prove discrimination.

With increasing workplace attention on harassment, some employees are looking to tribunals such as the Ontario Labour Relations Board and Human Rights Tribunal of Ontario for assistance.  In the case of the Tribunal, the complaint will fail unless the employee can prove that he or she suffered discrimination or harassment because of sex, race, disability or another prohibited ground of discrimination under the Human Rights Code.

Sfara v. Toronto (City), 2014 HRTO 178 (CanLII)

 

Reprimands for “violation of basic safety protocols” were not discriminatory

“Disgruntled and aggressive clients” posed safety threat under OHSA

An employee who was fired after complaining to the Ministry of Labour that she felt threatened by “disgruntled and aggressive clients” was entitled to damages for the retaliatory discharge, the Ontario Labour Relations Board has decided.

The employee worked for an investment/marketing company.  She tried to speak with a company manager about her concerns with aggressive clients and about having the company develop procedures to deal with matters such as violence and harassment. The manager refused to entertain the suggestions.

The employee then contacted the Ministry of Labour and told the MOL that she felt threatened in the workplace and that her employer had no policies to deal with her concerns.  After a co-worker contacted the MOL with concerns, an MOL inspector came to the workplace and ordered the employer to prepare a violence and harassment policy.  The next day, the company dismissed the employee.

The OLRB accepted that the threat posed by “disgruntled and aggressive clients” was a workplace safety issue under the Occupational Health and Safety Act, and that the employee had characterized it as such when she had complained to management.  Also, in the absence of an explanation by the employer (the employer did not attend the OLRB hearing), the OLRB was satisfied that at least part of the company’s reason for dismissing her was her safety complaint.  As such, her termination was an illegal reprisal under the Occupational Health and Safety Act.  She found employment quickly, and was entitled to damages in the amount of four weeks’ wages.

Abigail C de los Santos Sands v Moneta Marketing Solutions Inc, 2014 CanLII 33527 (ON LRB)

 

“Disgruntled and aggressive clients” posed safety threat under OHSA

Arbitrator may order change to hours, location of doctor who sexually-harassed hospital nurse

Where a doctor has sexually harassed a nurse, a labour arbitrator has authority to decide how close the doctor should be able to work with the nurse, and under what conditions, an Ontario arbitrator has decided.

The nurse claimed that she was sexually harassed by the doctor. The hospital stripped the doctor of his privileges so that he could not, at present, practise at the hospital. The union brought a grievance on behalf of the nurse, claiming relief including an assurance from the hospital “that Dr. G. will not be allowed to return to the workplace.”  The hospital and the doctor claimed that the arbitrator had no authority to order that relief.

The arbitrator decided that he had jurisdiction to determine the essential question: how close Dr. G. should be able to work with the nurse, and under what conditions.  That was a labour relations question arising directly from the collective agreement which guaranteed a safe workplace free from harassment.

The arbitrator held that although the Health Professionals Appeal and Review Board had exclusive jurisdiction over the doctor’s privileges at public hospitals, the arbitrator had authority to determine how close the doctor should be able to work with the nurse, and under what conditions.  This may involve a decision on whether the nurse and doctor should work at different sites or in different locations, and whether the doctor should work at the hospital at all when the nurse is working there.

William Osler Health System v Ontario Nurses’ Association, 2013 CanLII 72709 (ON LA)

 

Arbitrator may order change to hours, location of doctor who sexually-harassed hospital nurse

Supreme Court denies chronic stress WCB claim after employee reacted to disciplinary letter

The Supreme Court of Canada has denied an employee’s claim for workers’ compensation benefits for “chronic stress” which he said resulted from a disciplinary letter that followed years of conflict over another workplace issue.

The employee, a park warden with Parks Canada, had for years argued that park wardens should be armed when carrying out law enforcement duties. He filed a health and safety complaint which generated internal complaint processes and a number of court cases and appeals.

Parks Canada received a request under access to information legislation and instructed the employee to disclose certain data on his work computer so that it could comply with the request. Parks Canada was not satisfied that he responded properly, so it gave him a letter notifying him that he would be disciplined if he did not provide an adequate response to the access to information request.

The employee already had a written reprimand on his file and feared that the next discipline would be dismissal. He claimed that the letter triggered a psychological condition that followed years of conflict over the health and safety issue. He filed a claim with the Alberta Workers’ Compensation Board. The relevant Alberta Workers’ Compensation Board policy stated:

11. When does WCB accept claims for chronic onset stress?

As with any other claim, WCB investigates the causation to determine whether the claim is acceptable. Claims for this type of injury are eligible for compensation only when all of the following criteria are met:

• there is a confirmed psychological or psychiatric diagnosis . . .

• the work-related events or stressors are the predominant cause of the injury; . . .

• the work-related events are excessive or unusual in comparison to the normal pressures and tensions experienced by the average worker in a similar occupation, and

• there is objective confirmation of the events.

In addition to the duties reasonably expected by the nature of the worker’s occupation, normal pressures and tensions include, for example, interpersonal relations and conflicts, health and safety concerns, union issues, and routine labour relations actions taken by the employer, including workload and deadlines, work evaluation, performance management (discipline), transfers, changes in job duties, lay-offs, demotions, terminations, and reorganizations, to which all workers may be subject from time to time. [pp. 5-6]“

There was no dispute that the employee had met the first two criteria under the policy to receive WCB benefits for chronic stress: that there was a confirmed psychological or psychiatric diagnosis, and that the work-related events or stressors were the predominant cause of the injury. However, the employer disputed that (1) the work-related events were excessive or unusual in comparison to the normal pressures and tensions experienced by the average worker in a similar occupation, and (2) there was objective confirmation of the events.

The Supreme Court of Canada decided that it was open to the Alberta Workers’ Compensation Board to find that the “predominant cause” of the employee’s psychological injury was his reaction to the letter, and that such request was not unusual in terms of normal pressures and tensions in a similar occupation. Therefore, the WCB’s decision to deny workers’ compensation benefits to the employee was reasonable.

Martin v. Alberta (Workers’ Compensation Board), 2014 SCC 25 (CanLII)

Supreme Court denies chronic stress WCB claim after employee reacted to disciplinary letter

Threat, assault on supervisor were just cause for dismissal at isolated mine in NWT with “zero tolerance” violence policy

An employee at an isolated camp in the Northwest Territories who assaulted and threatened his supervisor was dismissed for just cause, an adjudicator has decided.

The employee was an equipment operator at a mine site.

The evidence was that the employee and supervisor got into an altercation “not directly related to work issues”.  All witnesses said that the employee pushed the supervisor three times.  Two witnesses said that the employee also threw a cup or bottle of water at the supervisor. Several coworkers were required to restrain the employee.

The day after the incident, the employee gave a statement in which he said, “.  .  . I didn’t make threats but I did make a promise.  I know where the prick lives and we will see each other.” The employer fired him and claimed just cause.

The employee filed a claim for termination pay under the NWT Employment Standards Act.  An Employment Standards Officer decided that he was dismissed for just cause and thus was not entitled to termination pay. The employee appealed, and an adjudicator agreed that he had been dismissed for just cause.

The adjudicator stated that the employee had agreed to the zero-tolerance violence policy and had disregarded that policy.  The workplace was an isolated camp setting and the assault and further threats of violence were in clear violation of that policy.  Although the employee claimed that his supervisor had not been treating him properly, there were other alternatives to violence.

Therefore, the adjudicator decided that the single incident of the assault and threats was just cause for dismissal.

I & D Management Services Ltd v Mercredi, 2013 CanLII 89793 (NWT LSB)

 

Threat, assault on supervisor were just cause for dismissal at isolated mine in NWT with “zero tolerance” violence policy

Adjudicator’s award was shaming of union officials for “ongoing campaign”, harassment of member which breached duty of fair representation

A union member has won a legal battle against local union officials after they engaged in a “campaign” against him that attacked his credibility and resulted in him being subjected to a harassment complaint. 

The employee, Benoit, worked in a correctional institution. He sent an e-mail to an Assistant Warden expressing concern that “CXJ”, a female correctional officer, was not wearing proper safety equipment.  The Assistant Warden copied Trimble, a correctional officer at the institution and an executive on the union local, on her response.

Trimble forwarded the e-mail chain to two other local union officials, Smith and Clarke, with disparaging commentary about Benoit.  Unfortunately for Benoit, Smith was in an intimate relationship with CXJ.  Trimble forwarded the entire e-mail string to CXJ, who evidently became upset and filed a harassment complaint against Benoit, which was eventually dismissed.

Benoit confronted Trimble, but Trimble denied forwarding the e-mail to CXJ.  Subsequently Trimble sent a disparaging e-mail to Benoit which Trimble printed to all printers in the institution, apparently so that all bargaining unit members could read it.

Benoit later filed a harassment complaint against Trimble, which the employer determined was founded.

The adjudicator, a member of the Public Service Labour Relations Board, found that the union officials engaged in an “ongoing campaign” to discredit and demean Benoit.  Trimble’s conduct was the most egregious.  Smith, the intimate partner of CXJ, had been in a conflict of interest, and Clarke had the ability to stop the campaign but did not.  As a result, Benoit ceased seeking assistance from the union.  The union officials chose sides against Benoit, were biased against him, and were not acting in good faith as representatives of the union. They each breached their duty of fair representation to him.

The adjudicator ordered that the union pay $2,000.00 in damages to Benoit; that the adjudicator’s decision be posted on all bulletin boards in the institution for 12 months; that the decision be posted on the union’s website for 3 months; and that the decision be sent to each member of the institution accompanied by a letter advising that the adjudicator determined that the union breached its duty of fair representation. This was a significant “shaming” of the local union and the three officials.

This decision illustrates that it is not only employers that can be liable for harassment; union officials must avoid harassing conduct and must represent members fairly.

Benoit v. Trimble et al., 2014 PSLRB 46 (CanLII)

 

 

 

Adjudicator’s award was shaming of union officials for “ongoing campaign”, harassment of member which breached duty of fair representation

Professional engineer with “significant safety background” who sent “abhorrent e-mails”, loses safety-retaliation case

A professional engineer who engaged in an “over the top, aggressive” argument with an established member of management, has lost his safety-retaliation case at the Ontario Labour Relations Board. Although employees who raise safety issues are entitled to protection, they must do so respectfully, the OLRB stated.

The employee was hired as the company’s Business Operations Manager. He had a strong health and safety background. One month after he started working, he joined the joint Health and Safety Committee. He got into a significant conflict with the company’s “National Manager, Occupational Health and Safety”, which included a heated e-mail exchange. In one e-mail, he wrote:

“I have been beaten up, insulted and ripped apart over safety. Never in my 16 year Manufacturing Engineering career have I encountered such resistance on safety from any manager never mind from a Safety Manager himself.”

In another e-mail, he wrote, “Do not threaten me again. Ok. One more time and it’s considered harassment!”

The Ontario Labour Relations Board held that “the applicant was mostly (although not entirely) to blame for the inappropriate tone of the email exchange. Despite being on the job for barely a month, he seemed intent on creating a confrontation with the company’s Health and Safety Manager. He was engaged in an over the top, aggressive argument with an established member of management.”

The OLRB held that the applicant had also made false allegations, yelled and swore at another company manager, and “exasperated” the company’s management.

According to the OLRB, “the normal workplace rules regarding decorum and respectfulness apply” when employees raise safety issues, and the employee had “crossed lines in this case”. The OLRB decided that the company had terminated his employment “because he acted in a disrespectful and threatening manner to other members of management and for no other reason”.

Lastly, the employee was still in his probation period when fired; was not truthful at the OLRB hearing; and had sent “abhorrent” e-mails – under an alias – to management shortly after he was fired, in which he invited one manager to a “street fight” with him and said it was “payback time”. Therefore, the OLRB did not “exercise any discretion” to substitute a lesser penalty than dismissal.

Kalac v Corrosion Service Ltd, 2014 CanLII 15044 (ON LRB)

Professional engineer with “significant safety background” who sent “abhorrent e-mails”, loses safety-retaliation case

Not Harassment to Remind Nurses of Professional Obligations, Arbitrator Says

It was not “harassment” for a manager to mention the College of Nurses of Ontario and remind nurses of their professional obligations, an arbitrator has held.

The nurses worked at the Central East Correctional Centre.  In a meeting, the manager reminded nurses that they should not be sleeping or watching movies during the night shift, and discussed changes to the “break routine”.  Some nurses appeared to be resisting the manager’s message regarding sleeping and watching movies.  One nurse asked a “question” about whether nurses should respond to emergencies during unpaid breaks, which the arbitrator took as a threat of retribution in response to changes to the breaks.  The manager reminded them of their professional obligations as nurses and referred to the College of Nurses of Ontario.

The nurses complained that the mention of professional obligations, and of the College of Nurses of Ontario, was threatening and amounted to harassment.  They argued that it carried the implication that the nurses could face professional penalties for resisting changes to break times.

The arbitrator disagreed, and was critical of the nurses:

“The union asserted that the employer’s references to the [College of Nurses of Ontario] were wholly unnecessary, and that the grievors were fully aware of, and did not need to be reminded of their professional responsibilities.  Given the comments made in response to both issues, this was apparently not the case.  If they had been aware, or if that awareness had been in their minds during the meeting, it is unlikely that they would have reacted by defending the right to sleep while on duty or raising the issue of not responding to emergencies because they did not find favour the employer’s position with respect to breaks.  To my mind, the employer’s reminder of the professional obligations was justified and apt.”

In conclusion, the arbitrator held that the nurses had not been “threatened, intimidated or harassed”. Instead, the “employer was engaged in an attempt to manage improper workplace behaviour”.  The reference to the College of Nurses of Ontario was an appropriate answer to the inappropriate “question” that carried the implication that nurses might not respond to emergencies on unpaid breaks.  The nurses’ reaction was “irrational and cannot be explained on the basis of the employer’s approach to the meeting.”

This decision is another reminder that an employer’s legitimate management of the workplace is not harassment.

Ontario Public Service Employees Union (Marsh et al) v Ontario (Community Safety and Correctional Services), 2014 CanLII 13355 (ON GSB)

Not Harassment to Remind Nurses of Professional Obligations, Arbitrator Says

Not Quite an Eye for an Eye – Judge rules that Employee’s “Kick in the Butt” Excuses Co-Worker’s Punch in the Mouth

Does a “kick in the butt” excuse a punch in the mouth? That was the question facing the Court in the recent case of Li v Furguson, 2013 CanLII 91746 (Ont. Sm. Cl. Ct.).

Peng Li and Winston Furguson worked in the shipping and receiving department of a furniture company. Li and Furguson’s coexistence was initially uneventful; however, their relationship had begun to disintegrate following allegations by Li that Furguson was stealing from the company.

On April 19, 2011, things between Li and Furguson reached a boiling point. After searching for Furguson throughout the warehouse, Li finally found his target and confronted him. What happened next was a source of disagreement between the parties, although the judge adopted the following facts. Li began speaking very closely to Furguson; so close that spit was transferred to Furguson’s face, albeit unintentionally. As Furguson tried to break free, Li kicked Furguson in the “butt” with his steel-toe boots. Furguson then wheeled and punched Li twice – one blow was inconsequential, the other was not as it resulted in Li incurring over $7,000.00 in costs for restorative dental services.

At trial, Li argued that he was entitled to damages from Furguson for the tort of battery. However, in the judge’s view, Li’s actions amounted to implied consent to the battery:

Having insulted, berated and confined a person at close quarters, then scuffled with them and kicked them I cannot see how a reasonable person could maintain that a punch or two in return was beyond their reasonable contemplation as being with the scope of what they had implicitly consented to.

 
In addition, the judge held that Li had provoked Furguson by kicking him. Although provocation was not a complete answer to Li’s claim of battery, it nonetheless operated to mitigate the damages that Li had in turn claimed.

In light of these facts, the judge dismissed Li’s claim in its entirety.

It is important to note that while Li had originally brought an action against his employer in which he made a number of claims, including one for “wrongful dismissal”, this action was discontinued before trial. Regardless, apart from the civil liability above, the altercation between Li and Furguson would certainly attract the attention of any employer’s workplace violence policy and potentially lead to discipline.

Li v Furguson, 2013 CanLII 91746 (Ont. Sm. Cl. Ct.)

Not Quite an Eye for an Eye – Judge rules that Employee’s “Kick in the Butt” Excuses Co-Worker’s Punch in the Mouth

MOL Inspector’s “Unclear” Order Required School Board to Revise its Workplace Violence Policy

A Ministry of Labour inspector has ordered an Ontario school board to revise its workplace violence policy, and the Ontario Labour Relations Board has suspended that Order, calling it “unclear”.

The inspector attended at a high school after a worker complained about two incidents at the school.  The inspector concluded that the school had failed to provide workers with “information and instruction concerning persons with a history of violent behaviour”, as required by section 32.0.5(3) of the Occupational Health and Safety Act which section was enacted by Bill 168.  The inspector issued an Order under the Occupational Health and Safety Act requiring the school board to “develop arrangements to provide information to workers” regarding the risk of workplace violence from a person with a history of violent behaviour.

The school board appealed the Order. It argued that the inspector had not specified the basic facts underlining the “two examples” that were mentioned in the Order.

The Ontario Labour Relations Board suspended the Order.  It held that the Order essentially required the school board to comply with the OHSA, which it was already obligated to do.  Also, the school board could be prejudiced if it were required to “comply with an order that is unclear on its face”.  Finally, the OLRB doubted that deference should be given to the Ministry of Labour inspector when the Order was unclear on its face.

This case demonstrates that where Ministry of Labour inspectors do not state the facts underlying their compliance Orders, the employer may have a viable challenge to the Order.  Also, the OLRB will be more likely to suspend an Order when it simply repeats obligations in the OHSA.

Dufferin-Peel Catholic District School Board v Ontario English Catholic Teachers’ Association, 2014 CanLII 13515 (ON LRB)

MOL Inspector’s “Unclear” Order Required School Board to Revise its Workplace Violence Policy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

The CBC report may be accessed here.

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