The debate continues as to whether the Ontario Labour Relations Board has jurisdiction to hear harassment-reprisal complaints under the Occupational Health and Safety Act, but another Vice-Chair of the OLRB has said “yes”.

As we wrote in another post, an earlier OLRB decision called Investia had suggested that because the OHSA does not require employers to prevent harassment – but only to have a harassment policy and program, to provide “information and instruction” to employees on harassment, and to post the policy – the OHSA does not protect employees who were dismissed for complaining about harassment.

Recent decisions of the OLRB, and now the OLRB’s November 21, 2014 decision involving Celco Inc., have come to the opposite conclusion.  In the Celco case, an employee alleged that she had experienced continuing workplace harassment from a co-worker and had complained to the employer about it several times.  She said that the employer took no action, but rather dismissed her from her employment the same day she complained to the employer about harassment.

Vice-Chair Derek Rogers of the OLRB stated:

“The applicant has asserted that she sought to have the responding party investigate and deal with her complaints and that she sought enforcement of the Act by making her reports.  For the purposes of the responding party’s motion and at this stage of the proceedings, that is sufficient in the Board’s view . . . According to the applicant’s allegations, there was a very close temporal nexus between the applicant’s raising issues about what she alleged as ‘workplace bullying’ by a co-worker (by then promoted to a supervisory position over the applicant) and the notification by Celco that the applicant’s employment was terminated.  The timing of the ‘without cause’ termination of employment and the allegation that there was no rationale offered other than that the applicant was not happy at Celco are sufficient in the Board’s view to support the proposition that Celco should be called upon to explain its position regarding the employment termination.”

As such, the OLRB permitted the employee to advance her complaint that she was retaliated against for complaining about harassment, and that that retaliation violated the OHSA.  The OLRB rejected the employer’s request to dismiss the complaint at an early stage.

One lesson from the decision is that wherever there is a risk that the employee will allege that her dismissal was in retaliation for her raising safety concerns, the employer should, in the termination letter, provide a clear and supportable non-retaliatory rationale for the termination.  By not offering a rationale, the employer may encourage a presumption that the employee was dismissed in retaliation for raising safety issues.

Ram v Celco Inc., 2014 CanLII 74839 (ON LRB)