Early rulings interpreting Bill 168 have so far placed very little obligation on employers to actually ensure a harassment-free workplace, employment lawyers say.
When it comes to workplace violence, the Ontario Labour Relations Board has interpreted Bill 168 to broaden the obligation on employers to take threats seriously. But when it comes to workplace harassment, the only obligations employers have are to develop a policy, a program to implement it, and provide employees information and instructions about them.
As to what that policy says or how to enforce it, these aren’t questions the law has empowered the labour board to look into, according to a few early rulings, including Conforti v. Investia Financial Services Inc. and Harper v. Ludlow Technical Products Canada Ltd.
These early interpretations of Bill 168 are “rendering the harassment language of the act pretty meaningless,” says employment lawyer Dennis Buchanan. “If there’s no substantive compliance, then what’s the point?”
The first case involves an employee, Shlomo Conforti, who felt he was harassed when other employees asked him to comply with policy.
The company felt his communications with those employees were “less than professional, specifically belligerent, and derogatory in nature” and warned him that any further such interactions would lead to his termination.
He responded to that warning with another e-mail asking the company’s chief compliance officer to investigate his harassment complaint. Two days after he made this request, the company terminated his employment.
Conforti filed a labour board complaint alleging that the company had violated s. 50 of the Occupational Health and Safety Act when it terminated him for seeking enforcement of it.
The board found that although s. 50 protects an employee from reprisal for seeking
enforcement of such health and safety issues, it doesn’t extend that protection to workers complaining of an employer not enforcing its anti-harassment policy.
“In the case of an employee who complains that he has been harassed, there is no provision in the [act] that says an employer has an obligation to keep the workplace harassment free,” wrote vice chairman Brian McLean.
“The only obligation set out in the act is that an employer have a policy for dealing with harassment complaints. The legislature could very easily have said an employer has an obligation to provide a harassment-free workplace but it did not.”
In Harper, vice chairwoman Susan Serena agreed. The board doesn’t have jurisdiction over “a complaint that alleges the company did not comply with its workplace harassment policy and/or the applicant was subjected to a reprisal after she filed a workplace harassment complaint,” she wrote.
Buchanan says he disagrees with the board’s very literal reading of the act but acknowledges that the amendments brought about by Bill 168 give it very little to go on.
“The actual language added to the act by Bill 168 on workplace harassment is minimal. You don’t have much there. You don’t have the act changing the language about substantive rights that employees have to be protected from harassment.
And so it doesn’t expressly say employers are obligated to provide an environment free from harassment.”
Although he doesn’t like the direction the board is going with these decisions, Blaine Donais, a lawyer and president and founder of the Workplace Fairness Institute, says it’s what he had expected all along.
“When you actually look at the submissions, especially the submissions made by employers leading up to the creation of Bill 168, what the employers were saying was, ‘You cannot create a remedy for employees who feel they’ve been harassed because harassment is so poorly defined that anything could be harassment and we could have 10,000 cases a year on it.’
“It seems like the legislators agreed somewhat with that concern or at least accommodated that concern by creating no extra obligation on employers other than to have a policy.”
Donais is much more supportive of how the board has interpreted the provisions dealing with workplace violence, as seen in a case involving the City of Kingston and CUPE Local 109.
The case stemmed from the termination of a 47-year-old city employee with 25 years of seniority and a long record of arguing with her supervisor, leaving the workplace, yelling, and swearing at supervisors and co-workers.
When the employee uttered what might be construed as a threat to her union representative, her employer decided to terminate her employment.
In adjudicating this case, arbitrator Elaine Newman set out four major changes that Bill 168 has brought upon employers, workers, and adjudicators. The first is the way everyone, including adjudicators and judges, must think about inappropriate language.
Language that is “vexatious and unwelcome is harassment and very serious in its own right,” she wrote. “But language that is made in direct reference to the end of a person’s life or that suggests impending danger falls into a category of its own. This is not just language, it is violence.”
Secondly, the bill has changed the way an employer and a co-worker must react to an allegation of a threat. It’s no longer acceptable to take a passive stance and hope things will blow over, according to Newman.
“The utterance of a threat in the workplace requires that the workplace parties stop cold. They must report. They must investigate. They must assess the existence of real danger. They must act.”
The third and fourth changes have to do with how an arbitrator might assess whether termination is a reasonable response to a threat. Newman said the usual factors still apply but noted there’s now more weight on the seriousness of the attack.
The arbitrator will also have to consider one additional question: “To what extent is it likely that this employee, if returned to the workplace, can be relied upon to conduct himself or herself in a way that is safe for others?”
These third and fourth points also place some burden on arbitrators and judges to ensure workplace safety, says Donais.
“What the arbitrator said was it was not just the incident itself that was the problem. It was the fact that it was not the first time it happened and also that the employee showed no remorse. So the arbitrator had no reason to believe that these actions wouldn’t continue,” says Donais.
“And if you take that with Newman’s fourth point, what she’s saying is, ‘As an arbitrator, I now have an obligation to ensure there’s a safe workplace here. So if I reinstate this employee knowing full well that the employee may do this again, then I’m not doing my duty.’”
For more, see "Few ready for Bill 168."