Even though an employer's harassment investigation was
allegedly slow, inadequate and had a questionable outcome, the
employee had not suffered a "reprisal" under the Ontario
Occupational Health and Safety Act, the Ontario Labour
Relations Board has held.
The Employee alleged that another employee had harassed
her. She filed a harassment complaint with the employer. The
employer investigated and actually found that her complaint was
The employee was still unhappy. She filed a reprisal complaint
with the OLRB, alleging that the investigation took too long and
was of poor quality, and that the outcome was not appropriate (she
said that the employer has not done enough to protect her from the
harasser – she had asked the employer to guarantee that she
would never work with him again – and she wanted more serious
discipline imposed on the harasser).
The OLRB decided that the employer's actions, if true, did
not meet the definition of reprisal under the OHSA. The
employee did not claim that she was disciplined, dismissed or
threatened for claiming the protection of the OHSA. Nor did
she plead any facts that could lead the OLRB to conclude that the
employer has penalized, intimidated or coerced her for seeking to
enforce the OHSA.
The OLRB stated:
"While Ms. Pouli is not happy with the conduct of the
investigation and, to a certain extent, its outcome, her
dissatisfaction with the process and the discipline (or lack
thereof) ultimately imposed upon the Co-worker do not constitute
reprisals under the Act . . . [T]he instant case can be summarized
as follows: The Employer has a Policy pursuant to which Ms. Pouli
filed a Complaint, which was investigated but Ms. Pouli is not
happy with the investigatory process and certain aspects of the
results. This set of facts simply does not engage section 50
of the Act."
This case illustrates the principle that under the OHSA, most
harassment issues are to be dealt with and resolved internally
within the employer's organization. Given the structure
of the harassment provisions of the OHSA, in only exceptional cases
will the OLRB or the Ontario Ministry of Labour get involved
with the conduct or even the outcome of harassment
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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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