In Conforti v Investia Financial Services Inc. an
employee was allegedly terminated after filing a harassment
complaint. In response, the employee filed a S. 50 Reprisal
complaint against the employer. The OLRB dismissed the complaint
stating that the OHSA does not provide the Board
jurisdiction to entertain this type of complaint. The recently
added Bill 168 provisions require an employer to implement a
workplace harassment policy and program. However, it does not
provide specific rights to workers. Therefore a worker could raise
an issue with the lack of a program/policy and would be free from
reprisal for doing so. But the OLRB ruled that the jurisdiction of
the Board does not include the application of the policy and
Ljuboja v Aim Group Inc.
In this case an employee (Ljuboja) filed an official harassment
complaint with their employer following a heated exchange with a
colleague. Shortly thereafter the employee who made the complaint
was terminated. In response, Ljuboja filed a complaint of reprisal
with the OLRB. The decision (similar to Conforti) is
whether the case lacks a prima facie case and should be
The Conforti decision was thoroughly reviewed due to
the similar facts and arguments made by the parties. Vice-Chair
Nyman agreed with most of the Conforti decision but
ultimately dismissed the motion based on one specific divergence of
In the decision, the Vice-Chair Nyman agreed with
Conforti that workers are protected from complaining about
the lack of a harassment/violence policy, and the failure to post
either policy in the workplace. The Vice-Chair also agreed that the
OHSA does not require employers to provide a harassment free
workplace, nor any particular mode of investigation or outcome
following a harassment complaint. However, the decision concluded
that employees must be able to utilize the legislatively mandated
policy (i.e. submit a complaint) without reprisal. This finding was
based on the interpretation of the OHSA's language and
overriding purpose as a public welfare statute designed to promote
public health and safety. The concluding language is found at
paragraph 50 of the decision:
An interpretation that allows employers to penalize or retaliate
against workers who make a workplace harassment complaint would
entirely undermine the procedural mechanism that the Act creates
through which harassment issues can be brought forward in the
workplace. If workers can be terminated for making a complaint that
the employer's legislatively imposed policy enables them to do,
then only the most intrepid or foolish worker would ever complain.
In practical terms, there would be no measure or procedure for
making a complaint of harassment. Moreover, the occupational health
and safety value, whatever it may be (and I have speculated above
as to some of the possible values of requiring such a process),
that caused the Legislature to impose this obligation on employers
would be eviscerated.
Abick v Ministry of Government Services (Ontario
In this case an employee complained that his employer violated
the OHSA by failing to include harassment policies that
support the Act's requirements and by failing to carry out
investigations of incidents and complaints of workplace
This decision involved a preliminary motion by the employer to
have the complaint dismissed for lack of a prima facie
case. The employer relied heavily on the decision of Conforti v
Investia Financial Services Inc. for support of their
position. Despite Conforti, the Board ruled that the case
is distinct from a reprisal complaint. In this instance, the
employee's main complaint focuses on the sufficiency of the
workplace harassment policy as required by the OHSA.
Therefore the motion to have it dismissed for lack of a
prima facie case was rejected.
The lawyers at CCPartners understand an employer's
responsibilities with respect to workplace violence and harassment.
We can help you understand and implement the necessary measures to
ensure a safe workplace and remain compliant with the
OHSA. Neither of the two decisions has been finally
decided and we will be sure to keep employers up to date regarding
any new developments.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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