No Reprisal for Harassment under Ontario OHSA

A vice-chair of the Ontario Labour Relations Board has suggested, without finally deciding the point, that the OLRB has no authority under the Occupational Health and Safety Act to adjudicate a complaint that an employee suffered reprisal for raising an issue of workplace harassment.

Ontario’s Bill 168 added provisions regarding workplace violence and harassment to the Ontario OHSA.  Although Bill 168 requires employers to take reasonable precautions to avoid workplace violence, interestingly, it does not require employers to take steps to avoid workplace harassment. 

The vice-chair stated that, because the OHSA does not create a right to be free from harassment, an employee cannot advance a complaint that he or she suffered reprisal for raising a harassment complaint.  That is because a reprisal complaint under the OHSA must allege reprisal for exercising a right under the OHSA, but there is no right under the OHSA to be free from harassment.  Rather, the OHSA simply requires employers to have a harassment policy and program and to provide “information and instruction” to employees regarding harassment.

This decision seems right to me.  Employees who believe they have suffered reprisal for raising complaints of Human Rights Code harassment, such as racial or sexual harassment, may still complain to the Human Rights Tribunal of Ontario. Employees with non-Human Rights Code harassment issues will need to deal with those through the employer’s internal processes.

Conforti v. Investia Financial Services Inc.: http://canlii.ca/en/on/onlrb/doc/2011/2011canlii60897/2011canlii60897.html

Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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