In what appears to be a departure from a growing line of cases,
the Ontario Labour Relations Board has permitted an employee to
advance her claim that the employer violated the Occupational
Health and Safety Act when it fired her after a manager
allegedly confronted her in an angry manner.
The employee, Ashworth, alleged that the manager demanded that
she close the door and then positioned herself in front of the
closed door and started screaming and pointing her finger in the
employee's face. The employee claimed that she became
afraid and was asked to be allowed to leave, but the manager
continued to be abusive. The employer subsequently terminated
The employer appears to have argued that the employee's
complaint did not make out a safety-reprisal case because the
incident did not raise workplace safety issues under the
Occupational Health and Safety Act, and therefore there
was no basis for the employee's claim that she was fired for
raising safety issues.
That argument flows from a line of cases, of which Conforti v Investia Financial Services
Inc, 2011 CanLII 60897 (ON LRB) is most notable. In that
case, the OLRB stated that "it appears the OHSA only requires an employer to put a
workplace harassment policy and program in place and to provide a
worker with information and instruction as appropriate", but
that the OHSA does not actually require the employer to prevent
harassment. As such, an employee's claim that she was
fired for asking the employer to prevent harassment does not engage
the OHSA and cannot form the basis for a reprisal claim.
The OLRB, in Ms. Ashworth's case, was not persuaded that the
case should be dismissed at this stage for failure to disclose a
prima facie reprisal case. Although the decision
does not say it, the OLRB may have felt that the manager's
conduct might constitute workplace violence – rather than
harassment – in which case the employee's complaint could
possibly succeed. The OHSA does require employers to take
reasonable steps to avoid workplace violence – but
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On Thursday, September 22, 2016, Dentons hosted a panel discussion about the management of liabilities and risks associated with environmental crises, including potential liabilities for directors and officers and provided insight into risk and liability techniques associated with environmental crisis management.
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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