May an employee, unhappy with how he or she was treated after
filing a harassment complaint with the employer, turn to the
Ontario Labour Relations Board for a remedy? Up until recently, the
answer appeared to be "no". Two recent decisions of the
OLRB suggest otherwise.
In a November 2013 decision called Ljuboja v Aim Group Inc., Jesse
Nyman, a Vice-Chair of the OLRB, rejected earlier OLRB decisions
and decided that an employee may complain to the OLRB where he or
she has suffered a reprisal for filing a harassment complaint with
"At the time of the hearing of this matter, there had been
no settlement in the Board's jurisprudence regarding whether
the making of a harassment complaint constitutes the exercise of a
right under the OHSA (see Investia, 2011 Can LII 6089 and
Kazenel v. Citi Cards Canada Inc., 2012 Can LII 9582 etc).
In a decision issued after the hearing in the matter before me was
completed, the Board (differently constituted) rejected the
Investia reasoning and found that the making of a
complaint under an employer's harassment policy constitutes
seeking the enforcement of the Act (see Ljuboja v. A.I.M. Group
Inc., 2013 CanLII 26528 (ON GSB), 2013 CanLII
26528). While I have some difficulty with the reasoning in that
decision, I recognize that it is within a range of possible results
and in the interests of consistent decision making regarding the
Board's interpretation of the OHSA, I accept it."
These two recent decisions are concerning. The language of the
Occupational Health and Safety Act suggests that
harassment complaints are to be dealt with internally – by
the employer and employee – and not to be brought to the
OLRB. The OHSA language suggests that only if an employer has not
implemented a harassment policy and program, or not ensured that
the program contained the contents required under the OHSA, failed
to post the policy, or failed to provide "information and
instruction" to employees on the policy and program, may an
employee complain to the OLRB. Put another way – and this is
often misunderstood - the OHSA does not place a legal obligation on
employers to prevent harassment, so the OLRB has no
authority to hear a complaint that the employer failed to prevent
harassment or did not handle a harassment complaint properly.
The two recent decisions effectively permit employees, unhappy
with the result of a harassment complaint, to allege
"reprisal" and bring the case to the OLRB. If the law
indeed allows that, one is concerned that the OLRB will receive a
wave of such complaints that should be dealt with internally.
Of course, as before, complaints dealing with harassment because
or race, gender, sex and other prohibited grounds of discrimination
under the Human Rights Code may be brought to the Human
Rights Tribunal. The OLRB decisions do not change that.
We will continue to monitor the caselaw and provide updates on
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