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Bill 168 light on harassment obligations

|Written By Uyen Vu

Early rulings interpreting Bill 168 have so far placed very little obligation on employers to actually ensure a harassment-free workplace, employment lawyers say.

Early interpretations of Bill 168 are ‘rendering the harassment language of the act pretty meaningless,’ says Dennis Buchanan.

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."

  • Don
    Re: Investia case: Overlooked by the OLRB is that the MOL provides an “Employer Tool Kit” which states the min. requirements to comply with Bill 168. The obligations placed on ALL employers are explained in this “Employer Tool Kit”-(Policy, Program and Training Review Tool) which serves as an “audit “tool for MOL Inspectors to determine if the employer is in compliance by meeting the “min. requirements." The broader definition of harassment is worded so as not to be undermined by the perpetrator or anyone else; as what may be offensive to one person may not be offensive to another. The Vice Chair undermined the broader definition by imposing his own opinion of harassment for this person; this was inappropriate and demonstrated ignorance in respecting this new broader definition. Lori Dupont & Teresa Vince would have met the same fate based on this reckless and somewhat suspect decision of the Board. Tool):
  • Don
    Unjust By Design

    This book demonstrates that, except perhaps in Quebec, the executive branch’s administrative justice system is a "justice system" in name only. Failing to conform to rule-of-law principles or constitutional norms, its judicial tribunals are neither independent nor, in law, impartial. And they are only providentially competent.
  • Don
    The Ministry of Labour, within its legislation clearly indicates a responsibility for the employer to set out in their policies how they will “investigate” among other things. This clearly shows an obligation on the employer to respond and take action in the circumstance in the protection of a worker. If there’s no obligation, as the OLRB so recklessly suggests, than an investigation would be a waste of time and serve no purpose. Think about this: There are criminal codes in place to protect citizens and nowhere does it state that the government is responsible for providing a crime free city. This would be absurd and yet, this is what the OLRB is using to subvert the law, thus giving immunity to employers instead of protecting workers in the workplace as Bill 168 is intended to do. Oddly enough, the Ministry of Labour remains silent on this injustice.
  • Don
    The Ministry of Labour clearly shows that there is an obligation
    The question is: What is the point of having a policy in place to investigate when the employer has no obligation to investigate? Why is the MOL silent when the OLRB inserted an “exemption clause” by way of an arbitrary ruling which rendered Bill 168 useless, serving no purpose other than to protect employers as opposed to protecting workers as this Bill was intended to do? This can only be viewed as subverting the law by setting an OLRB precedent that is harmful and reckless to all those receiving training in the workplace under this Bill.
  • jenny t.
    'employer not enforcing its anti-harassment policy' is 'ineffective policy' according to MOL hot line that I phoned one or two month ago. Inspector came to our company spend hours there and issued a few orders. Upon my request (the complainer's request) a copy of the order issued will be provided to me.

    Jenny Tang
  • jenny t.
    It sounds so familiar that 'harassment can be anything' that the employer (or anyone else) does not have to be responsible for stopping it, other than post a policy on the wall; 30 years ago, domestic violence (including psychological violence) received the same neglect; some people said that who knew what's going on inside of ones house.

    While Bill 168 does not provide enough to make employer responsible for work place harassment, it does not mean that the Bill can not be further improved, and amended at a later time; it does not mean that work place harassment is acceptable. and decent employer would do nothing to stop it. If Rose Park did not voice her opinion with her action, segregation is still legal.

    We can not let work place harassment especially now more frequently in psychological violence form to erode democracy in our society.

    Jenny Tang
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