Reprisal firings

When employees are dismissed after filing complaints

By Jeremy Warning and Cheryl A. Edwards

On November 22, 2013, the Ontario Labour Relations Board (“the Board”) released its decision in the Ljuboja v. The Aim Group Inc. and General Motors of Canada Limited, (“AIM”). The Board has potentially signalled a new way to approach the concept of reprisal under the Ontario Occupational Health and Safety Act (“OHSA”).

In the application, a worker alleged a reprisal—that he was fired because he reported an incident of workplace violence and harassment to his employer. The Board had held in a number of previous decisions that an alleged reprisal for making a harassment complaint did not engage the anti-reprisal provisions of the OHSA. Consequently, such applications were repeatedly dismissed, without a hearing, for failing to establish that a reprisal had occurred. However, AIM may signal a change as the Board applied a broader interpretation of the workplace harassment provisions of the OHSA.

Harder to dismiss

If this change in approach is adopted by the Board in future cases, it will likely make it more difficult for respondents to have such reprisal applications dismissed at an early stage. Perhaps more notably, the reasoning in the decision may open the door to greater involvement by the Ontario Ministry of Labour (“MOL”), in mandating specific types of reporting and investigation processes for OHS-based harassment.

In AIM, a contract worker in a managerial position alleged that his former employers terminated him because he complained that he experienced workplace harassment and violence at the hands of one of his bosses. During an end of shift meeting, the boss was alleged to have repeatedly screamed and sworn at the worker, causing him to fear for his physical safety and the safety of the work environment. The worker reported the incident to human resources  He filed a formal harassment complaint against his boss after allegedly being assured that reporting the incident would not lead to a reprisal against him.

In the application to the Board, the worker alleges that his employment was terminated after making the harassment complaint. He says that his contract was up for renewal shortly after he made the harassment complaint but he was fired approximately two weeks before the renewal date. He also asserts that he was not permitted to work the time remaining on his contract and was told that the termination was not based on performance issues. Ultimately, the reprisal complaint alleges that the firing was, at least in part, motivated by the filing of the harassment complaint and is, therefore, a violation of the anti-reprisal provisions of the OHSA.

Potential for more reprisal cases

Before a full hearing in the case, the respondent employers brought a motion seeking to have the case dismissed for failing to detail sufficient facts to establish that a reprisal had occurred. As a reminder, under section 50 of the Ontario OHSA, a reprisal occurs when a worker is penalized or retaliated against by his employer, or a person acting on behalf of his employer, for: complying with the OHSA, seeking to enforce the OHSA or its regulations, or giving evidence in a proceeding under the OHSA.

Where a worker alleges a reprisal, the employer bears the burden of proving that the alleged reprisal was not motivated by the worker engaging in one of these protected rights. If any connection is established between the exercise of one of the rights and the alleged reprisal, a violation of section 50 has occurred. The worker is then entitled to a remedy which could include reinstatement, compensation or another remedy to address the consequences of the reprisal.

The preliminary motion brought in AIM was made because the Board has discretion to refuse to inquire into an application that, on its face, could not support a reprisal finding. If the Board exercises its discretion, the complaint is dismissed before a hearing has occurred. When deciding this kind of preliminary motion, the Board accepts the worker’s allegations as true and does not consider any facts pleaded by a respondent. The ruling does not determine if a reprisal has occurred or whether any particular facts have been proven. The ruling only decides whether the facts, as pleaded by the applicant, could constitute a reprisal if they are proven at a hearing.

In dismissing the respondents’ preliminary motion, the Board held:

(1) The case involving alleged yelling and screaming does not involve workplace violence;

(2) A worker complaining of workplace harassment/violence is seeking enforcement of the OHSA; and

(3)  Making a workplace harassment complaint is behaviour protected by the reprisal provisions of the OHSA.

The Board found that there was no workplace violence because there was no actual, attempted or threatened physical force. However, the unwelcome, rude, belittling or unprofessional behaviour could fall under the OHSA definition of “workplace harassment” as “…a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.”

Previously, the Board had stood quite firm that it had no authority to hear an application alleging a reprisal under the OHSA for a reprisal following filing of a workplace harassment complaint. The genesis of this prior approach was the Conforti v. Investia Financial Services Inc. and Industrial Insurance and Financial Services Inc. (“Investia”) decision. The comments made in that decision influenced a series of subsequent cases – the most recent of which were decided in 2012. Cumulatively those cases represented a meaningful body of decisions in which the Board exercised its discretion not to hear applications where the alleged reprisal was related to the filing of a workplace harassment complaint.

Harassment policies help

Importantly, under these earlier cases, the Board had held that an employer’s OHSA workplace harassment obligations required a workplace harassment policy, a program with reporting and investigation mechanisms, and worker training on both. If the employer had met these requirements, then a reprisal allegation based on filing a workplace harassment complaint could not be sustained because the OHSA does not dictate how an employer will investigate and respond to a workplace harassment complaint.

The Board departed from these prior rulings in AIM and held that its jurisdiction was not so limited. Importantly, the Board ruled that the comments in Investia incorrectly narrowed the interpretation of the OHSA harassment and anti-reprisal provisions. The Board held that a worker who makes a harassment complaint to his employer is seeking the enforcement of the OHSA because he or she is seeking to have the employer comply with its obligation to enable workers to make complaints. The Board considered the practical result of applying the earlier approach in Investia and the cases that followed it. In AIM, the Board held that an interpretation permitting employers to “penalize workers who make a workplace harassment complaint would entirely undermine the procedural mechanism” to bring such complaints forward.

Alternatively, the Board held that a worker would be acting in compliance with the OHSA by accessing the statutory mechanism enabling complaints of harassment to be made to the employer. Regardless of how it is characterized, the upshot of the AIM ruling is that it is a reprisal for a worker to be penalized for making a harassment complaint.

AIM may represent a change in the Board’s approach to these cases. Employers should be aware that it may be more difficult to have reprisal complaints arising from workplace harassment issues dismissed at an early stage.

Linking terminations with reprisals

However, the potentially more noteworthy implication is whether the AIM decision suggests that the MOL or the Board could or will inquire into or assess the quality of employers’ processes relating to workplace harassment complaints. Under cases like Investia, the Board previously held that it would not become involved in the practical application of workplace harassment procedures (i.e. the Board would not adjudicate the results of a harassment investigation). To date, the MOL has taken a similar approach and the AIM decision does not suggest that this will change.

However, in finding that the termination of a worker for making a complaint of workplace harassment would be a reprisal, the Board reasoned that the workplace harassment obligations in the OHSA serve a health and safety purpose (preventing workplace harassment from developing into more harmful conduct such as that seen dramatically in the outburst of violence at OC Transpo and in other situations) and, because of that, employers must implement an effective or meaningful program through which workers may raise concerns about workplace harassment.

If the expectation is that employers will implement workplace harassment policies through effective and meaningful programs, it is arguably consistent with that approach that an employer’s program could be reviewed to ensure the reporting and investigation processes meet these expectations. Arguably, an employer could be directed to remedy any deficiency in implementation of the program through an order from the MOL under the general duty clause of the OHSA.

If the approach and reasoning of the Board develops the law as we suggest they could, the case will represent a significant development in the evolution of the OHSA’s workplace harassment provisions.

Jeremy Warning and Cheryl A. Edwards practice occupational health and safety law at the Toronto office of Mathews Dinsdale & Clark LLP. The authors acknowledge the assistance of Ted Panagiotoulias, student-at-law, for his assistance in the preparation of this piece.