Canadian Employment Law Today

December 4, 2019

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Canadian Employment Law Today | 7 More Cases Canadian HR Reporter, 2019 dition, she said she was fired before she had the opportunity to report the harassment and bullying to the company's joint occupa- tional health and safety committee. Harpell also said that when the issue hadn't been resolved to her satisfaction one year after her initial complaint, she filed a report with the company's ethics line. Law- ton's HR department called a meeting, but it refused Harpell's request to have a sup- port person present, so the meeting was cancelled. Soon after, Lawton's terminated Harpell's employment. The investigating officer ordered docu- mentation from Lawton's, but the company challenged it. The officer then closed the in- vestigation and Harpell appealed to the Nova Scotia Labour Board. She acknowledged that psychological harassment and bullying aren't specifically covered in the definition of "vio- lence" in the regulations but psychological health and safety should be included in the protection provided by the act. Lawton's countered that psychological harassment and bullying aren't covered under the act and Harpell had no grounds for a complaint under the act. In addition, because Harpell didn't take her complaint to the joint occupational health and safety committee first, she didn't follow proper procedure under the act. OHSA covered physical risks only The Nova Scotia Labour Board found that the Violence in the Workplace Regulations specifically only applied to physical violence and threats of such violence. The definition of violence referred only to physical injury, physical health and physical safety. The legislature "wished a particular type of con- duct to be subject to regulation" and "said so clearly" in the regulations, the board said. As for the act, the general purpose clause indicates employers must take "every pre- caution that is reasonable in the circum- stances to ensure the health and safety of persons at or near the workplace" but doesn't make any reference to psychologi- cal harm or threats. Without the specific inclusion of psychological harassment in the language of the act — as in the legis- lation of other jurisdictions — the board couldn't make such a broad interpretation of the act's protections. As a result, the board could not uphold Harpell's com- plaint of harassment and "psychological violence" under the act and regulations. "We accept that conduct such as harass- ment and bullying may lead to harmful consequences that have health and safety consequences, and that other provinces may have protections that do not exist in Nova Scotia," the board said. "However, the decision to broaden the scope of protection to include psychological violence under occupational health and safety legislation is ultimately a legislative policy judgment, which is beyond the role of a statutory tri- bunal such as the board." The board also noted that the act sets out a test for proving a discriminatory ac- tion complaint. The test includes reporting it immediately to a supervisor, reporting it to the joint occupational health and safety committee if the first option doesn't resolve the matter and then filing a complaint un- der the act. In this case, Harpell skipped the committee step and went right to filing a complaint under the act. This was a failure to take "reasonable steps to engage in the... process." Had Harpell had grounds for a complaint of psychological harassment and violence under the act, it would have been undermined by her failure to comply with the proper complaint procedure, the board said in dismissing Harpell's complaint. For more information, see: • Annette Harpell and Lawton's Drug Store, 2019 NSLB 56 (N.S. Lab. Bd.). Nova Scotia regulations only apply to physical violence and threats of such violence. « from PSYCHOLOGICAL on page 1 Nova Scotia act doesn't reference psychological threats CREDIT: MIHAI_ANDRITOIU SHUTTERSTOCK not entitled, while at work, to express themselves either in verbal or written form in a manner that is calculated to disrupt production or bring the employer into dis- repute with its customers: Canada Post Corp. v C.U.P.W. Overall, freedom of expression cannot be equated to freedom from workplace conse- quences. Certain comments or discussion can create a negative or hostile work envi- ronment that can interfere with an employ- ee's job performance or work environment. As much as freedom of speech is an important value to advocate, employers must also ensure that all speech is carried out respectfully and free of discrimination. For more information see: • Canada Post Corp. v C.U.P.W., 26 L.A.C. (3d) 58 (Can. Arb.). Tim Mitchell practises management- side labour and employment law with McLennan Ross LLP in Calgary. He can be reached at (403) 303-1791 or tmitchell@ « from ASK AN EXPERT on page 2 Freedom of speech vs. poisoned work environment

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