There is no doubt that the environment in which allegations of harassment are investigated has shifted dramatically. This is as a result of statutory changes such as Ontario’s Bill 132, which amended the Occupational Health and Safety Act (“OHSA”) and has been in effect for over two years. It imposed a clear obligation for employers to conduct investigations into complaints and incidents of workplace harassment. It is also as a result of social events such as #metoo and greater media attention on sexual harassment and how employers (and other institutions) respond.
The case law is shifting too. Simply put, there is simply more of it, and cases which deal with investigations and allegations of harassment now arise across the country and in different legal venues. There is a quickly developing body of law that is providing guidance on (among other things) what is a fair and appropriate investigation, what triggers the conduct of one, the consequences of failing to conduct an investigation, and whether they are privileged. What follows is our own “curation” of ten cases that have arisen in 2017-2018 that we found noteworthy and think counsel to employers should know about.
1. The employer’s obligation to address the risk of harassment
OHSA is typical of the occupational health and safety legislation throughout this country, in that it sets out an overarching requirement for employer to ensure the safety of their employees. Since section 25(2)(h) of the OHSA requires employers to “take every precaution reasonable in the circumstances for the protection of a worker”, it was only a matter of time before this obligation extended to the protection of workers from actual or potential threats of harassment.
In Cambridge Memorial Hospital v Ontario Public Service Employees Union, Local 239, (2018 CanLII 9683 (ON LA)), Arbitrator William Marcotte shed light on how section 25(2)(h) incorporates an employer’s duty to address and prevent workplace harassment. In this case, the union grieved a new policy that employees felt would enhance the risk of workplace harassment.
Cambridge Memorial Hospital (“CMH”) was in the process of moving into a new building. This, combined with various consultation groups with patients that demonstrated a need for greater trust and accountability, encouraged CMH’s management to institute a new policy to have all employees’ name tags contain both their first and last names. Previously there had been no such policy and employees often had their first initial and last name or first name and last initial, depending on their preference. For many employees, this was an unwelcome unilateral imposition of a rule from management. They felt as though by having their first and last names on display, it would enhance the risk of harassment that they may face from clients and other members of the public and constituted an invasion of privacy. CMH’s vice president of clinical care and chief nursing executive provided the following justification for this new rule, as well as a response to employees’ concerns regarding the enhanced risk of harassment:
Many of you would agreed that trust is sacrosanct. You may also agree that trust erodes when information is withheld. By not fully disclosing who we are and the role we have within our great organization, I strongly believe we are diminishing this trust and our values of accountability, collaboration and caring. For these reasons I have requested that our current polices be enforced to ensure that anyone issued a CMH ID badge will have their full names on that badge.
I have heard many arguments against this decision, including those of safety and privacy. These are tenuous at best since anyone who receives care at a hospital, can call to ask for the names of their care providers. I know there may be some people in special circumstances that will need to be accommodated. Rest assured, these will be reviewed on a case-by-case basis.
In the end, I believe this standard will make us a better health care organization and stronger within our community (My emphasis).
Indeed, the union presented no evidence of an actual increase in incidents of workplace harassment as a result of staff wearing name tags featuring their first and last names. This lack of evidence, including the understanding that staff members from regulated health professions could be searched on various online databases for their respective regulatory college, led the employer to move ahead with this policy without seriously addressing this concern. This turned out to be the wrong approach according to the Arbitrator.
Arbitrator Marcotte had little trouble pointing out that CMH had violated s. 25(2)(h) of the OHSA by not addressing its employees’ concerns about the risk of harassment they may face by having their full names on their name tags, regardless of the lack of evidence on this point. After citing a case involving a similar issue with border services officers in Canada Border Services Agency v. PSAC, 2014 OHSTC 11 (CanLII) [Border Services] He stated:
As to whether or not the Hospital breached s. 25(2)(h) of OHSA, given that its name tag policy introduces a new safety risk, it is incumbent upon it to have taken ‘every precaution reasonable in the circumstances.” It is clear from the evidence; the Hospital did not turn its mind to consideration of the risk associated with its name tag policy. Consequently, I must find the Hospital breached s.25(2)(h) of OHSA.
Essentially, as in Border Services, whenever a policy creates a new risk of something that might affect the safety of workers – including a risk of harassment – employers must do something to address this new risk before the policy that creates the risk is enforced.
2. Reprisal considerations
Despite the clarity of the sections of the OHSA that demand employers to investigate both complaints and incidents of workplace harassment, many employers are still unsure of how to initiate these investigations when employees come to them with very little information or do not wish to reveal a complaint or incident of workplace harassment. While it is always prudent to do as much as possible to investigate any incident for which one has even a minimal set of facts, or to follow-up with other individuals who may be able to provide additional information about a particular incident, there are cases when there simply is not enough hard evidence to do an investigation. If that is the case, employer counsel will need to address the liability that their client will face for not doing an investigation.
Technically, an employer could be charged for failing to conduct an investigation into a complaint or incident of workplace harassment. However, if an occupational health and safety inspector conducts a review of an employer, they may simply demand that the employer conduct an investigation based on information either it has received, or the employer should have known at the time of the incident. More often, however, an employer is found to have either failed to conduct such an investigation or used the investigation process to punish the complainant in a claim of reprisal under s. 50(1) of the OHSA. Many such cases have recently been reported after an employer terminates an employee soon after they have conducted an investigation into a complaint of harassment raised by that employee. While such investigations may reveal challenges with a particular employee, if there is any nexus between the investigation of a complaint of workplace harassment and any such discipline, that employee will have a prima facie claim of reprisal under s. 50(1) of the OHSA. But what happens when an employee brings a complaint of harassment to their employer’s attention, but does not wish for an investigation to be conducted?
In Taylor v. International Financial Data Services (Canada) Ltd., (2018 CanLII 40487 (ON LRB)), the Ontario Labour Relations Board revisited the test for reprisal under the OHSA. Although this case did not substantively change the test, it highlights how and when employees can use their ‘rights’ under OHSA to address workplace harassment and how that affects an employer’s liability for conducting or failing to conduct workplace harassment investigations.
In 2013, Ms. Taylor was hired as Senior Assistant Manager for International Financial Data Services (IFDS) and reported to Mr. Carnduff, who was responsible for carrying out Ms. Taylor’s semi-annual performance reviews. During her time at IFDS, Ms. Taylor’s overall performance was good. However, in 2016 her overall performance ratings were lower which resulted in her termination in January 2017.
Ms. Taylor brought an application under section 50(1). In her application Ms. Taylor claimed she was dismissed because she had enforced her right to seek relief from workplace harassment under the OHSA. Ms. Taylor gave evidence of two incidents that she claimed were workplace harassment. After the first incident, Ms. Taylor spoke with human resources to get advice on what options were available to her and at that time determined she would not file a formal complaint. After the second incident Ms. Taylor filed a formal complaint, the employer completed an investigation and concluded no harassment had taken place.
Ms. Taylor argued that there was a connection between her complaints and the termination of her employment. IFDS argued that the two incidents did not meet the definition for workplace harassment, and even if they did, there was no connection between the two complaints and the employer’s decision to terminate Ms. Taylor.
When reviewing reprisal applications, the OLRB does not assess the merits of the harassment complaint, but rather looks at whether a nexus can be established between the making of the harassment complaint by the employee and the subsequent termination by the employer.
The Board must first determine if a harassment complaint has been filed. In this case, the Board found that the first incident did not meet the requirement because Ms. Taylor did not “formally” file a complaint under the employer’s policy. After determining whether a complaint has been filed, the Board will consider if the employer terminated or penalized the employee for filing the complaint; specifically, is there a connection between the filing of the complaint and the actions taken by the employer.
In reprisal cases the respondent bears the burden of proving that on a balance of probabilities, it did not act contrary to OHSA when terminating the employee. This will require the employer to prove why it took the steps it did when terminating the employee.