An employer that dismissed an employee after a harassment
investigation did not breach a previous safety-reprisal settlement
with the employee, the Ontario Labour Relations Board has held.
In effect, the employer never promised not to dismiss the
The employee had previously filed a safety-reprisal Application
against the employer at the OLRB which was settled. The settlement
terms stated that the employee was aware that a harassment
complaint had been made against him, that the employer intended to
retain an external investigator, and that the investigation
"may result in discipline".
After the harassment investigation was concluded, the employer
dismissed the employee. The employee then filed a
breach-of-settlement Application with the OLRB claiming that there
had been no discussion that "discipline" could include
"dismissal". He said that, instead, there had been
a "common understanding" that some form of
discipline may result from the harassment investigation, but that
the purpose of the discipline would be to correct any misconduct
and ensure adherence to company rules and policies.
The OLRB decided:
"The applicant asserts no facts that would lead the Board
to conclude that the parties meant to exclude termination as a
possible disciplinary response by Brose. The applicant does
not say, for example, that he received an assurance from Brose in
the lead-up to the settlement that Brose would refrain from
terminating him, or that the range of any possible disciplinary
response would exclude termination. The plain words of the
settlement do not qualify the term 'discipline'. And
as I have pointed out, Brose's anti-harassment policy
specifically contemplates termination as a possibility where
harassment is found to have occurred."
Interestingly, in coming to its decision that
"discipline" included "dismissal", the OLRB
noted that the company's policy on Harassment in the Workplace
stated that employees found to have engaged in harassment
"will be subject to discipline up to and including
termination" – commonly-used wording in employment
policies. This wording suggested that, at least at this
company and at least with respect to harassment, termination was a
"subset of dismissal".
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