[136] However, if the action proceeded at the Ontario Human Rights Tribunal, the employer could face even harsher punishment. Fullerton v. Nygard International, [2008] OLRD 5260 (OLRB). [10] Workplace sexual harassment is defined as: (a) “engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or, (b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome. Haran v. Continental Investissements Capital Inc [2017] OLRD 702 (OLRB). 2.0 POLICY 2.01 St Andrew’s United Church takes a position of zero tolerance with regard to workplace harassment. Workplace sexual harassment can be comments or conduct occurring more than once, or it can be a single occurrence. [91] The employee had made complaints about harassment in the workplace and she was ultimately terminated for “not meeting the requirements of the company.” [92] The Board reasoned that by asking her to come back to work on various occasions, the employer had proved that she did nothing to justify her termination, and that her termination was likely a result of her making a harassment complaint. [91] Haran v. Continental Investissements Capital Inc [2017] OLRD 702 at para 23 (OLRB) [Haran]. [63] For example, if the worker was terminated shortly after the complaint was made, the Board will want the employer to justify their suspicious actions. This pattern of behaviour may include physical violence, sexual, emotional, and psychological intimidation, verbal abuse, stalking, and using electronic devices to harass and control.”. If the OLRB and the Human Rights Tribunal both have the ability to hear sexual harassment reprisal decisions, this could mean that if found guilty, the employer could face severe consequences. [11], Based on this new inclusion, employer’s obligations with respect to protecting health and safety in the workplace have radically increased. According to Statistics Canada (2004), nearly one-fifth of all incidents of violent victimization in Canada, including physical assault, sexual assault and robbery, occurred in the victim’s workplace. [132] Instead, they must only address whether a complaint was made, whether the worker suffered a detrimental impact and whether there is a nexus between the two, as provided by the reprisal test. OWJN does not give legal advice. New Brunswick has recently introduced a new regulation under the Occupational Health and Safety Act on the topic of problematic workplace conduct. This is because the OLRB has frequently reiterated that if the worker actually wants to remedy the harassment that has occurred to them, there would be no authority to do so under the OHSA. One of the biggest concerns of employers and management-side lawyers is whether the 2016 amendments give rise to duplicative litigation for hearing cases of workplace sexual harassment. CED 4th (online), Labour Law, (Ont), “Provincial: Ontario Labour Relations Act: Historical Background II.1. [5] As such, statutes such as the Compensation for Victims of Crime Act, the Limitations Act, Residential Tenancies Act, Ministries of Training, Colleges and Universities Act, Private Career Colleges Act, and the Occupational Health and Safety Act were amended to denounce violence in schools, the workplace, and at home. Therefore, the OLRB should exercise caution when determining the credibility of applicants and employers in sexual harassment cases. Workplace harassment may include bullying, intimidating or offensive jokes, displaying or passing around offensive pictures or materials, or offensive or intimidating phone calls. However, employers cannot use a prolonged period of time between their action and the complaint as proof that a reprisal did not occur. [71] Doyle v. Yellowknife District Hospital Society (1997),77 CLLC 16,083 at para 12 (CLRB). In any event, workers will not be held to an unrealistic standard in trying to enforce their rights[67] and even if a prima facie case is not made out, it is likely that the Board will move on and ask the employer to justify their actions. Banks, Kevin. [96] Kevin Banks (22 November 2017) “Freedom of Association, Freedom of Expression, Grievance Arbitration,” Lecture, Queen’s University, Kingston, Ontario. [70] To further elaborate on this point, in Doyle v. Yellowknife District Hospital Society, the Canada Labour Relations Board stated that, “an employer must not be permitted to achieve a discriminatory objective because he coupled his discriminatory motive with other non-discriminatory reasons for his act.”[71] In most cases, employers will try to justify their action either by claiming that the worker had performance deficiencies, was not a good fit or failed to follow direction. At this point, an Inspector at the Ministry of Labour must be notified. [138] Therefore, the Tribunal has jurisdiction to impose general damages of up to $25,000 in cases of sexual harassment. [125] Further, Campbell stated that the Tribunal cannot be overly technical in applying these principles and cannot act an appellate court to fix the wrongs they believed occurred in previous proceedings. A copy of the Occupational Health and Safety Act. Since the Board has yet to hear a sexual harassment reprisal case, I will attempt to predict how the Board will apply the reprisal test to these new provisions. The wording of the provision suggests that the legislature intended to protect workers from sexual harassment whether or not a formal complaint was made. [119] In addition, this section is intended to create certainty in the law, as parties would be extremely prejudiced from having issues re-litigated. [23] This report must summarize the incident, outline the steps the employer has taken to investigate, provide the evidence they have gathered, and include their findings on whether harassment has occurred. [97] This is not to say non-unionized employers must prove just cause in order to justify a termination; however, a clear disconnect between the alleged conduct and the employer’s sanction can be indicative of an employer’s intention. As previously mentioned, s. 32.07(1) requires an employer to conduct an investigation into incidents and complaints of workplace harassment. Typically, if the employee was terminated or discharged and the employer does not satisfy their burden to prove that a reprisal did not occur, the OLRB will reinstate the worker and impose an obligation on the employer to pay the individual for lost wages and benefits. [51] She complained of continuous scheduling problems and repetitive behaviour on the part of Ms. [87] In ruling that the employer did not provide adequate evidence to justify their actions, the Board stated that the email her manager relied on for the termination was never produced, nor was there any proof that the allegations in the email were valid. [34] The applicant believed that a series of emails he received constituted harassment. Workplace harassment means vexatious (harmful) comments or conduct against a worker in a workplace that is known or should reasonably be known to be unwelcome. VAT Registration No: 842417633. “So much of work now takes place in locations and circumstances that are not under employer’s direct control and not under employer’s direct supervision,” said Neil. What constitutes a right under the Act in terms of workplace harassment? Egredzija v. Cro-Tech Electrical Contractors Ltd [2017] OLRD 818 (OLRB). If you need legal advice, you should contact a lawyer, who can help you make decisions about your legal rights. If you feel the situation has not been fixed you can continue to refuse work. means any land, premises, or location where, or near where, a worker works (for example, work buildings, green spaces, research parks and sites, parking lots etc.). [19] The Ministry recognizes that investigating a sexual harassment complaint may be more complex than a regular harassment complaint, given the sensitivity of the situation. In British Columbia, WorkSafeBC has developed policies and resources related specifically to workplace bullying and harassment. Violence as an occupational health and safety hazard 3 These regulations do not diminish the responsibility of all workplace parties to recognize violence as a occupational health and safety hazard in carrying out their precautions and duties under the Act. Employers with more than 5 employees must provide written policies that are posted in visible locations. [1] The Occupational Health and Safety Act (‘OHSA’) was one piece of legislation affected by this Bill. To date, few Canadian jurisdictions have occupational health and safety legislation that is specific to bullying. [6] This amendment was in direct response to misogynistic attitudes and rape cultures prevalent in society. A guide to health and safety regulation in Great Britain; Working together to prevent sickness absence becoming job loss - practical advice for safety and other trade union representatives; Sun protection - advice for employers of outdoor workers; Preventing contact dermatitis at work (4th) 308. As a precaution, employers should take it upon themselves to look into incidents of harassment, a point that will be further discussed in the latter portion of this paper. The employer must investigate the situation immediately and involve either a joint health and safety committee member who represents workers, a health and safety representative or another worker. What is violence and harassment under the OHSA? 1. Once this is established, the employer has a burden under s. 50(5) to prove that the consequences against the worker had nothing to do with any protection listed under the Occupational Health and Safety Act. How do I make a claim under the Ontario Human Rights Code? One of the best protections employers can offer their workers is to establish a zero-tolerance policy toward workplace violence. This section states that workplace harassment claims should not include any reasonable action taken by the employer relating to the management and direction of the workplace. Subsection 1 (1) of the Occupational Health and Safety Act is amended by adding the following definitions: "workplace harassment" means engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome; ("harcèlement au travail") [124] Abuse of process has similar concerns, disallowing re-litigation in an attempt to impeach judicial findings. It is likely that when determining workplace sexual harassment cases, the OLRB will automatically shift the burden to the employer to prove that their disciplinary action did not arise from the worker’s complaint. Timing can be considered indicative of a reprisal; however, employers cannot rely on elapsed time to disprove a reprisal. means any person who is paid to do work or supplies services. [140] Based on this brief analysis, one can begin to understand how seriously employers must take complaints of sexual harassment in the workplace. [75] In other words, if a termination is a reprisal, it will not be found to be otherwise, simply because the employer delayed in an attempt to avoid the consequences. [116] However, s. 45.1 of the Code states that the Human Rights Tribunal (“Tribunal”) can dismiss an application, in whole or in part, if they are of the opinion that another proceeding appropriately dealt with the application.
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