OLRB Will Not Take Jurisdiction of Harassment Cases

February 29, 2012 | Nadya Tymochenko

The Ontario Labour Relations Board (“OLRB”) recently put to rest the question of whether or not changes to the Occupational Health and Safety Act brought about by Bill 168 also changed the OLRB’s authority to supervise employers with respect to issues of employee harassment. In another recent decision, the OLRB provided some guidance in obiter about behaviour that would not be sufficient to be considered harassment.

Recently, the OLRB found that it does not have jurisdiction to act pursuant to section 50 of the Occupational Health and Safety Act (“OHSA”) when an employee alleges an employer has breached the Act by failing to properly respond to an allegation of harassment.  In the case before the OLRB, an employee alleged that following harassment by her co-workers she filed a complaint, which she alleged her employer failed to investigate.  As well, the employee argued that her employer failed to properly process her WSIB application.

The OLRB found that section 50 of the OHSA, which identifies specific jurisdiction for some workplace reprisal allegations, does not equally apply to allegations that an employer has failed to address an allegation of harassment.  The OLRB held that the new provisions added by Bill 168 specifically omit an obligation by an employer to prevent workplace harassment or to keep the workplace free of harassment, and as such, section 50 of the OHSA cannot be engaged by the employee. Moreover, the OLRB found that the OHSA only requires that an employer put in place a policy and inform its employees about that policy the OHSA imposes no other duties on employers with respect to workplace harassment.  The OLRB held that it had no authority to adjudicate on the application of an employer’s policy regarding harassment, including how it might investigate or act during its investigation results.

While it would appear that the OLRB does not have authority with respect to allegations that employers have failed to implement or comply with workplace harassment policies, it is possible that an employee could argue that the harassment had so impacted their work and workplace as to cause their constructive dismissal.

As a result of the decision, the OLRB is unlikely to provide a great deal of direction on harassment. Previously, however, the OLRB had an opportunity to provide some guidance regarding what behaviour will not constitute harassment.  In a case involving a teacher alleging reprisal by his employer and failure to properly address harassment allegations, the OLRB found that it did not need to determine if it had jurisdiction pursuant to section 50 of the OHSA to deal with the complaint, because the allegations of harassment were not in fact harassment.

Namely, the teacher alleged that a fellow teacher’s: teaching methods and style; tardiness; lack of attention to matters of student health and safety during lab work; gossip about another teacher; refusal to meet to discuss departmental issues; confrontation about criticisms made of her as a teacher; and shouting at the teacher to turn off the lights during the course of a meeting, were harassing.

The OLRB found that these allegations were not harassment as defined by the OHSA, “[H]arassment under the OHSA is defined as engaging in 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”.  The OLRB found that most of the allegations were not related to or directed at the teacher, save one confrontation and one request to turn out the lights, which the OLRB found could not be considered a course of vexatious comment or conduct toward the teacher.

School boards will have to wait for further direction from grievance arbitration cases to have a full picture of what will be considered harassment.

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