The debate continues as to whether the Ontario Labour Relations
Board has jurisdiction to hear harassment-reprisal complaints under
the Occupational Health and Safety Act, but another
Vice-Chair of the OLRB has said "yes".
As we wrote in another
post, an earlier OLRB decision called Investia had
suggested that because the OHSA does not require employers to
prevent harassment – but only to have a harassment policy and
program, to provide "information and instruction" to
employees on harassment, and to post the policy – the OHSA
does not protect employees who were dismissed for complaining about
Recent decisions of the OLRB, and now the OLRB's November
21, 2014 decision involving Celco Inc., have come to the opposite
conclusion. In the Celco case, an employee alleged that she
had experienced continuing workplace harassment from a co-worker
and had complained to the employer about it several times.
She said that the employer took no action, but rather dismissed her
from her employment the same day she complained to the employer
Vice-Chair Derek Rogers of the OLRB stated:
"The applicant has asserted that she sought to have the
responding party investigate and deal with her complaints and that
she sought enforcement of the Act by making her reports. For
the purposes of the responding party's motion and at this stage
of the proceedings, that is sufficient in the Board's view . .
. According to the applicant's allegations, there was a very
close temporal nexus between the applicant's raising issues
about what she alleged as 'workplace bullying' by a
co-worker (by then promoted to a supervisory position over the
applicant) and the notification by Celco that the applicant's
employment was terminated. The timing of the 'without
cause' termination of employment and the allegation that there
was no rationale offered other than that the applicant was not
happy at Celco are sufficient in the Board's view to support
the proposition that Celco should be called upon to explain its
position regarding the employment termination."
As such, the OLRB permitted the employee to advance her
complaint that she was retaliated against for complaining about
harassment, and that that retaliation violated the OHSA. The
OLRB rejected the employer's request to dismiss the complaint
at an early stage.
One lesson from the decision is that wherever there is a risk
that the employee will allege that her dismissal was in retaliation
for her raising safety concerns, the employer should, in the
termination letter, provide a clear and supportable non-retaliatory
rationale for the termination. By not offering a rationale,
the employer may encourage a presumption that the employee was
dismissed in retaliation for raising safety issues.
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