An arbitrator has stated that the Ontario Occupational Health and Safety Act does not make employers "answerable to their employees for harassment to which they have been subjected by fellow employees or managers".
The case involved a unionized Systems Analyst who claimed that she had been "harassed and bullied" by her former manager. The employee alleged that the manager's conduct included spreading rumours about the employee, denying her permission to attend professional conferences, unfairly evaluating her performance, looking to find fault in her work, and failing to include her in pertinent email correspondence. The employee admitted that she had not brought all of the incidents to management's attention.
The arbitrator stated that the main purpose of the harassment provisions in the collective agreement between the employer and the union was to "express the parties' shared commitment to eliminating workplace harassment, and to provide for the investigation of complaints by employees who claim to have suffered harassment or bullying at the workplace". The collective agreement did not, however, include a provision that made the employer liable for workplace harassment.
Turning to the OHSA's workplace harassment provisions, the arbitrator stated:
"Of particular interest to this grievance is that the OHSA requires employers to develop policies on workplace harassment, the central plank of which is the investigation of harassment complaints. The OHSA provides for the possibility of fines for employers who fail to comply with their obligations under the legislation. It also provides for complaints to the Ontario Labour Relations Board or for the arbitration of grievances where it is alleged that an employer has penalized an employee as a reprisal for seeking to enforce his or her rights under the OHSA. Absent from the OHSA, however, is any suggestion that employers are answerable to their employees for harassment to which they have been subjected by fellow employees or by managers. In short, the OHSA does nothing to bolster the union's claim in the present case." [underlining added]
This decision suggests that the harassment provisions in the Ontario OHSA do not actually impose a duty on employers to ensure that employees are free from workplace harassment (rather, the OHSA requires employers to develop and post a harassment policy, provide employees with "information and instruction" on that policy, and ensure that complaints of harassment are appropriately investigated).
George Brown College of Applied Arts and Technology v Ontario Public Service Employees Union, 2017 CanLII 40984 (ON LA)
For more information, visit our Occupational Health & Safety Law blog at www.occupationalhealthandsafetylaw.com
About Dentons
Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Specific Questions relating to this article should be addressed directly to the author.
