Law Times

PAGE 12 FOCUS February 27, 2012 • Law Times BY UYEN VU For Law Times tually ensure a harassment-free workplace, employment lawyers say. E When it comes to workplace violence, the Ontario Labour Relations Board has interpreted Bill 168 to broaden the obliga- tion on employers to take threats seriously. But when it comes to workplace harassment, the only obligations employers have are to develop a policy, a program to implement it, and provide employees information and in- structions about them. As to what that policy says or how to enforce it, these aren't questions the law has empow- ered the labour board to look into, according to a few early rulings, including Conforti v. Investia Financial Services Inc. and Harper v. Ludlow Technical Products Canada Ltd. These early interpretations of Bill 168 are "rendering the harassment language of the act arly rulings interpret- ing Bill 168 have so far placed very little obliga- tion on employers to ac- pretty meaningless," says employment lawyer Den- nis Buchanan. "If there's no substantive compliance, then what's the point?" The first case involves an employee, Shlomo Conforti, who felt he was harassed when other employees asked him to comply with policy. The com- pany felt his communications with those employees were "less than professional, specif- ically belligerent, and deroga- tory in nature" and warned him that any further such in- teractions would lead to his termination. He responded to that warning with another e-mail asking the company's chief compliance officer to in- vestigate his harassment com- plaint. Two days aſter he made this request, the company ter- minated his employment. Conforti filed a labour board complaint alleging that the com- pany had violated s. 50 of the Occupational Health and Safety Act when it terminated him for seeking enforcement of it. The board found that al- though s. 50 protects an em- ployee from reprisal for seeking employer has an obligation to keep the workplace ha- rassment free," wrote vice chairman Brian McLean. "The only obligation set out in the act is that an em- ployer have a policy for deal- ing with harassment com- plaints. The legislature could very easily have said an em- ployer has an obligation to provide a harassment-free workplace but it did not." In Harper, vice chairwom- Early interpretations of Bill 168 are 'rendering the harassment language of the act pretty meaningless,' says Dennis Buchanan. enforcement of such health and safety issues, it doesn't ex- tend that protection to workers complaining of an employer not enforcing its anti-harass- ment policy. "In the case of an employee that he has who complains been harassed, there is no pro- vision in the [act] that says an an Susan Serena agreed. The board doesn't have jurisdic- tion over "a complaint that alleges the company did not comply with its workplace harassment policy and/or the applicant was subjected to a reprisal aſter she filed a work- place harassment complaint," she wrote. Buchanan says he disagrees with the board's very literal read- ing of the act but acknowledges that the amendments brought about by Bill 168 give it very little to go on. "The actual language added EXPERT GUIDANCE TO HELP YOU ANALYZE FEDERAL LABOUR AND EMPLOYMENT LAW THE 2011 ANNOTATED CANADA LABOUR CODE, 20TH ANNIVERSARY EDITION RONALD M. SNYDER Stay up to date with legal developments applicable to Federal union and non-union employees with The 2012 Annotated Canada Labour Code. 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Price subject to change without notice and subject to applicable taxes. to the act by Bill 168 on work- place harassment is minimal. You don't have much there. You don't have the act changing the language about substantive rights that employees have to be protected from harassment. And so it doesn't expressly say employers are obligated to pro- vide an environment free from harassment." Although he doesn't like the direction the board is go- ing with these decisions, Blaine Donais, a lawyer and president and founder of the Workplace Fairness Institute, says it's what he had expected all along. "When you actually look at the submissions, especially the submissions made by employ- ers leading up to the creation of Bill 168, what the employers were saying was, 'You cannot create a remedy for employees who feel they've been harassed because harassment is so poor- ly defined that anything could be harassment and we could have 10,000 cases a year on it.' "It seems like the legislators agreed somewhat with that concern or at least accommo- dated that concern by creating no extra obligation on employ- ers other than to have a policy." Donais is much more AVAILABLE SOON ON THOMSON REUTERS PROVIEW™ supportive of how the board has interpreted the provisions dealing with workplace vio- lence, as seen in a case involv- ing the City of Kingston and CUPE Local 109. The case stemmed from the termination of a 47-year-old city employee with 25 years of seniority and a long record of arguing with her supervisor, leaving the workplace, yelling, and swearing at supervisors and co-workers. When the employee uttered what might be construed as a threat to her union represen- tative, her employer decided to terminate her employment. In adjudicating this case, arbitrator Elaine Newman set out four major changes that Bill 168 has brought upon employ- ers, workers, and adjudicators. The first is the way everyone, including adjudicators and judges, must think about inap- propriate language. Language that is "vexatious and unwelcome is harassment and very serious in its own right," she wrote. "But language that is made in direct reference to the end of a person's life or that sug- gests impending danger falls into a category of its own. This is not just language, it is violence." Secondly, the bill has changed the way an employer and a co- worker must react to an allega- tion of a threat. It's no longer ac- ceptable to take a passive stance and hope things will blow over, according to Newman. "The ut- terance of a threat in the work- place requires that the workplace parties stop cold. They must re- port. They must investigate. They must assess the existence of real danger. They must act." The third and fourth chang- es have to do with how an ar- bitrator might assess whether termination is a reasonable response to a threat. Newman said the usual factors still ap- ply but noted there's now more weight on the seriousness of the attack. The arbitrator will also have to consider one additional question: "To what extent is it likely that this employee, if re- turned to the workplace, can be relied upon to conduct himself or herself in a way that is safe for others?" These third and fourth points also place some burden on ar- bitrators and judges to ensure workplace safety, says Donais. "What the arbitrator said was AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 it was not just the incident itself that was the problem. It was the fact that it was not the first time it happened and also that the employee showed no remorse. So the arbitrator had no rea- son to believe that these actions wouldn't continue," says Donais. "And if you take that with Newman's fourth point, what she's saying is, 'As an arbitrator, I now have an obligation to ensure there's a safe workplace here. So if I reinstate this employee know- ing full well that the employee may do this again, then I'm not doing my duty.'" LT www.lawtimesnews.com Bill 168 light on harassment obligations Early rulings show more aggressive approach to violence cases

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