Basing a harassment-reprisal complaint on a text message is
risky when one cannot prove that the text message was ever
The employee, who worked for a pool company, was moved around to
different jobs because he had trouble carrying out many of his
duties. Finally the employer found a warehouse position in which
the employee excelled. They presented the job description to the
employee on November 12, 2010. The employee raised concerns with
the job, and the employer stated that if he did not take that job,
there were no other jobs left for him. The employee refused to take
the job, and the employer sent him a Record of Employment stating
that he had quit. (The OLRB found that the employer had actually
terminated the employee).
The employee filed a reprisal complaint under the Ontario
Occupational Health and Safety Act relying on the
harassment provisions introduced by Bill 168.
At the OLRB hearing, the employee claimed to have sent his
employer a text message in the early morning before the meeting.
The employer denied ever receiving it. The employee provided the
OLRB with a copy of a document that he said was the text
"Hi Elton, this is Oneal. Nov 12. I have been very patient
and calm with the ill treatment that I have been receiving from
supervisor/manager Alex. You said it yourself, 'you two
don't get along'. That's not true I have been
respectful and calm with everything that she has said to me and
about me. You said, 'ill [sic] help you to be on her good
side.' Her treatment, verbal harassment, has gotten worst
[sic]. I have been yelled at, called a turkey and a banana. This
has been going on for longer than a month. I ask you to look into
this again but this time to stop it completely I don't deserve
to be bullied in the workplace. I am a hard worker. I do my best
everytime [sic]. I lifted things that are normally too heavy for me
to manage in order to be a team player. I am available to talk to
you about this issue. However you have been present many times and
therefore know what issues I am seeking a solution for."
The OLRB found that the employee's evidence about the text
message was "dubious". The OLRB stated that the document
purporting to be the text message was dated three days after his
termination, and that the employee had explained that this was
because he subsequently sent a copy of the text message to his
e-mail address, and then printed the e-mail from his computer.
Also, it was odd that the message began by the employee noting the
date of November 12. The OLRB stated, "Why did it occur to Mr.
Walters to specify the date within the body of the text message?
And what prompted him on the morning of November 12 to prepare a
remarkably lengthy and detailed text message, seemingly on the spur
of the moment as he made his way to work?" Also, contrary to
the contents of the alleged text message, there was no evidence
adduced in the hearing that the employee ever previously spoke to
the employer about the supervisor, Alex, or that the employer was
aware of any previous tension between the employee and the
supervisor. As such, the reliability of the employee's evidence
was in question.
The OLRB concluded that the employer did not terminate the
employee for complaining about harassment.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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