Canadian Lawyer InHouse

11 canadianlawyermag.com/inhouse April 2014 by malcom macKillop and hendrik nieuwland Workplace Solutions Going beyond policy and procedure ontario labour relations board shows it's prepared to hear complaints of alleged reprisal involving harassment. I n June 2010, Bill 168 introduced new require- ments to address workplace harassment in On- tario's Occupational Health and Safety Act. One of the immediate concerns lawyers expressed was the prospect of employers being flooded with reprisal complaints by employees alleging harassment. Section 50 of the act prohibits an employer from en- gaging in a reprisal against an employee who acts in compliance with, or seeks to enforce, the act. Employ- ees who are penalized (through actual or threatened discipline or termination) for exercising their rights un- der the act can bring a complaint to the Ontario Labour Relations Board for monetary compensation, and can even be reinstated if wrongly fired. The hopes of many would-be harassment complain- ants were dashed in 2011 when the board issued its de- cision in Conforti v. Investia Financial Services Inc. In that case, the board decided the act did not give it juris- diction to inquire into allegations of reprisal involving harassment. The board reasoned Bill 168 appeared to only require an employer to put in place a harassment policy and program, with no obligations beyond that. Many employers breathed a sigh of relief. Unfortunately, it appears the board has recently changed its mind. In Ljuboja v. The Aim Group Inc., Peter Ljuboja al- leged he had a difficult relationship with his supervi- sor, which culminated in an expletive-laced verbal confrontation between the two men. Ljuboja alleged he reported the incident to human resources, telling them he feared for his safety and the safety of others in the workplace as a result of the supervisor's actions. Ljuboja alleged he was assured there would be no re- prisal for reporting the incident. Notwithstanding this assurance, his contract was not renewed shortly there- after. Ljuboja therefore alleged he had been terminated in part because he brought the harassment complaint, and this amounted to a reprisal under the act. The board hearing Ljuboja's complaint refused to follow the Investia decision. It concluded making a harassment complaint under the required policy was a protected activity under the act, saying as follows: "Accepting, as I do, that the Act requires employers to have an internal process for addressing instances and complaints of workplace harassment, it would entirely undermine that process if an employer is free to ter- minate a worker because he or she brought forward a complaint of workplace harassment in compliance with that process. An interpretation of the Act that finds em- ployers are obligated to create and maintain a policy by which workers may bring forward complaints of harassment but are nevertheless free to terminate, or otherwise penalize or retaliate against, any worker for having actually made a complaint under that policy is, in my view, untenable." The board therefore refused the employer's request to dismiss the complaint on a preliminary basis, and Ljuboja's complaint is now scheduled for a hearing in May 2014. On Jan. 23, the board's alternate chairman Brian McLean (who wrote the Investia decision) adopted the reasoning from Ljuboja in the case Murphy v. The Car- penters' District Council of Ontario. It is therefore clear the board has reached a new con- sensus and is prepared to hear complaints of alleged reprisal involving harassment. This will likely result in an increase in reprisal complaints against employers. These decisions are not all bad news. In particular, the board in Ljuboja makes a number of statements that are favourable to employers, and which should sig- nificantly limit the scope of reprisal complaints. These statements include the following: The act only places procedural obligations on em- ployers with respect to workplace harassment.The act does not provide employees with a substantive right to a harassment free workplace. Employees cannot insist on a particular harassment investigation procedure, nor can they insist on a par- ticular outcome. The board in Ljuboja makes it clear it will not second-guess the results of a harassment inves- tigation done in accordance with the employer's policy. The grounds for a reprisal complaint seem to be quite limited. The board in Ljuboja appears to indicate that it will hear reprisal complaints only if a penalty is imposed on an employee for doing one or more of the following: a) insisting that the employer have a ha- rassment policy; b) insisting that the employer have a harassment procedure; c) making a complaint of ha- rassment pursuant to the policy; or d) participating in a complaint under the policy. IH Malcolm MacKillop and Hendrik Nieuwland practise employment law with the firm Shields O'Donnell MacKillop LLP of Toronto.

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