Law Times

Page 12 February 25, 2013 �� Law Times ��� FOCUS Does Nunes shut door on harassment reprisals? BY MICHAEL McKIERNAN Law Times A recent decision of the Ontario Labour Relations Board appears to have finally shut the door on reprisals for harassment complaints at the tribunal. Many anticipated a flurry of harassment reprisal complaints after the proclamation into law of Bill 168, legislation that created new obligations for employers to deal with workplace violence and harassment under the Occupational Health and Safety Act. But a string of labour board decisions rendered since the bill became law more than three years ago has hinted the board won���t hear harassment reprisal complaints. And in his November decision in Nunes v. AGF Albrecht, labour board vice chairman Matthew Wilson stated in passing that the board ���has determined that it does not have jurisdiction to inquire into a harassment complaint or an allegation that an employee has been dismissed for making a harassment complaint known to the employer.��� In Nunes, the applicant challenged her termination under s. 50 of the act that deals with reprisals. She alleged the company had terminated her for complaining about workplace bullying and harassment. But Wilson concluded the claim, ���even assuming all of the assertions in it can be proven, does not articulate any causal connection between her exercise of a right protected under the OHSA and the responding party���s decision to terminate her employment.��� Since Wilson���s decision didn���t address the board���s jurisdiction to deal with harassment reprisal complaints in detail, Toronto labour and employment lawyer Dennis Buchanan calls his negative declaration ���There was some belief that there could be hundreds of these cases coming forward after Bill 168,��� says Ryan Conlin. premature and holds out hope that a fuller analysis could alter the board���s position. ���My gut reaction is that I���m not sure that Nunes really settles the issue,��� says Buchanan. ���There were prior cases that treated this as still an open question and I���m not sure Nunes was intended to actually close it off.��� Buchanan argues the labour board case law cited by Wilson ��� Conforti v. Investia Financial Services Inc. and Yvonne Culp v. Blue Line Transportation Ltd. ��� was never intended as the final word on the board���s jurisdiction to inquire into alleged harassment reprisals. In Investia, labour board vice chairman Brian McLean expressed his view that ���the legislature would have been much more clear had it intended to make complaining about harassment a protected right under the act. This is especially true given the fact that such an interpretation would likely significantly increase the board���s caseload.��� However, the comments were considered obiter since McLean concluded that the facts of the case didn���t support the applicant���s harassment claim. In Blue Line, which came after Turn To The experTs To resolve your rslA mATTers New PubLicAtioN RePAiR ANd StoRAGe LieNS Act: A PRActicAL Guide HARveY M. 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In the clear-cut case, I think it would be unjust for them to say no,��� he says. However, Ryan Conlin, a partner with Stringers LLP, says the chances of that clear-cut case arriving before the board are diminishing. While he agrees the board hasn���t definitively shut down harassment reprisal complaints, he says the largely negative hints coming from the board so far have put off individual complainants from taking that route. ���There was some belief that there could be hundreds of these cases coming forward after Bill 168,��� he says. ���But it would appear to me that counsel for individual complainants are going to avoid the board like the plague. Why would you go to the trouble of getting into a jurisdictional fight when you don���t have to?��� The Bill 168 amendments required employers to conduct risk assessments for violence and harassment in the workplace and develop policies aimed at addressing those risks. Conlin says the board���s strict interpretation so far suggests the highest chance of success for complainants arises if they allege a reprisal for complaining about the lack of workplace harassment policies rather than for a complaint of actual harassment. ���Those are obviously pretty narrow facts,��� he says. Hermie Abraham, a lawyer with Williams HR Law in Markham, Ont., says there are other legal avenues besides the labour board available to employees to pursue allegations of harassment complaint reprisals. She says employees could bring a civil action or make an application at the Ontario Human Rights Tribunal. ���Employers still have to be careful about terminating someone because they bring a complaint of harassment. If there is a finding that that was the reason for termination, there are civil remedies,��� she says. ���They aren���t getting away scot-free just because the OLRB is interpreting it narrowly.��� LT

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