Canadian Employment Law Today

March 5, 2014 8 Published by Canadian HR Reporter, a Thomson Reuters business 2014 making a complaint of workplace harass- ment was not a right under the OHSA and, therefore, Ljuboja was not afforded protection from reprisals on this basis. In particular, the board's 2011 decision in Conforti v. Investia Financial Services Inc. held that the extent of an employer's obligations under the OHSA with respect to workplace harassment were to create an anti-harassment policy, develop and implement the policy, and provide work- ers with information about it. However, this precedent was rejected and the mat- ter was allowed to proceed to a board consultation. Earlier board decision 'fl awed' In Conforti, the board said (the case was decided on other grounds) it did not have the jurisdiction to adjudicate an allega- tion of reprisal for making a workplace harassment complaint. Two years later, in Ljuboja, the board changed course, fi nding that its earlier position was unfair and "fl awed." Vice-chair Nyman, writing for the board, held that two of the legislative mandates of Bill 168 — implementa- tion of a workplace harassment policy containing a complaint mechanism, and investigation of harassment complaints as they arise — would be "completely undermined" if an employer was permit- ted to discipline, terminate or otherwise retaliate against a worker for making a harassment complaint. Should that be the state of the law, the board noted, "only the most intrepid or foolish worker would ever complain." When a worker makes a workplace harassment complaint to an employer, the worker is seeking the enforcement of a right under the OHSA "because the worker is seeking to have the employer comply with its obligation to enable the worker to make a complaint," said the board. As such, the worker will be brought within the ambit of protection afforded by the anti-reprisal provisions contained in s. 50 of the act. Employer still not required to provide a harassment-free workplace Signifi cantly, the reasoning in Conforti was upheld in other respects. The board reaffi rmed the OHSA does not create substantive obligations with respect to workplace harassment. An employer is not required to provide a harassment- free workplace, nor to provide a specifi c type of investigation to a harassment complaint. As well, a worker cannot in- sist on any particular resolution to her complaint. The board also acknowledged an em- ployer cannot reasonably be expected to guarantee every aspect of its operation will "run in a manner that avoids offend- ing every individual's subjective sensi- bilities." The phrase "workplace harassment" could capture a broad range of conduct, and the board recognized it may be func- tionally impossible to absolutely prohibit every behaviour which could possibly fall within that defi nition. Tips for employers The board's decision in Ljuboja clarifi ed two aspects of Bill 168 with respect to workplace harassment — workplace ha- rassment policies must contain a mech- anism by which a worker may bring a complaint; and an employer will not be permitted to take reprisals against a worker who brings a complaint. Yet, an employer is still provided signif- icant leeway to determine the complaint process it will adopt and the process by which those complaints will be investi- gated and resolved. Neither the OHSA nor Ljuboja specifi es any procedural cri- teria. An employer must, however, take some active steps to implement and car- ry out its policy — simply posting it will not be suffi cient. Andrew Ebejer is a student at law with Sherrard Kuzz LLP, a management-side em- ployment and labour law fi rm in Toronto. He recently completed a secondment with the Ontario Labour Relations Board. He can be reached at (416) 603-0700 or visit www. sherrardkuzz.com for more information. the lack of evidence showing the arrest had an adverse impact on the reputation of the employer. In non-union workplaces, off-duty misconduct may provide grounds for dismissal with cause. In Kelly v. Linamar Corp., for example, the court upheld the dismissal of a manager who had been fi red after a local newspaper published information about the employee's arrest for possession of child pornography. The employee subsequently pleaded guilty to the offence. The court ruled that although the criminal behaviour occurred when the employee was off- duty and did not involve the use of any employer equipment, the employer had the right to protect its reputation in the community by dismissing the employee. The issue of whether an employer is obligated to take action where it be- comes aware of employee misconduct is highly dependent on the specifi c na- ture of the conduct in question. The law, only in rare circumstances, places posi- tive duties on individuals to report be- haviour to the authorities. For example, child protection legislation may place a positive duty on an individual to report suspected child abuse or neglect. Where a duty to report is not provided for in statute, however, employers must be careful not to offend applicable privacy legislation. For more information see: • Ceccol v. Ontario Gymnastic Federa- tion, 2001 CarswellOnt 3026 (Ont. C.A.). • Flynn v. Shorcan Brokers Ltd., 2004 CarswellOnt 2874 (Ont. S.C.J.). • Carr v. Atlantic Business College Ltd., 2007 CarswellNB 74 (N.B. Q.B.). • Fraser-Fort George Museum Society (June 7, 2001), BC EST #D292/01 (B.C. Employment Standards Trib.). • Lévis (Ville) c. Côté, 2007 CarswellQue 1926 (S.C.C.). • Canada (Treasury Board - Solicitor General - Correctional Service) v. Dionne, 2003 CarswellNat 6460 (Can. P.S.S.R.B.). • Toronto District School Board and CUPE, Local 4400 (XY), Re, 2013 Car- swellOnt 8216 (Ont. Arb.). • Kelly v. Linamar Corp., 2005 Carswel- lOnt 6611 (Ont. S.C.J.). Colin G.M. Gibson is a partner with Har- ris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@har- risco.com. Continued from page 2 Ask an Expert: Off-duty conduct Continued from page 3 Policy must have mechanism for complaints If an employer was permitted to discipline, terminate or otherwise retaliate against a worker for making a harassment complaint, Bill 168 would be 'copmleteley undermined.'

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