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 employee.
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".
Jeffery v Brose Canada Inc, 2014 CanLII 49707 (ON LRB)
For more information, visit our Occupational Health & Safety Law blog at www.occupationalhealthandsafetylaw.com
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