An adjudicator has held that the Occupational Health and Safety Act‘s “general duty” clause did not require an employer to issue a public response to a “smear campaign” by one employee and his lawyer against non-racialized employees of a jail which caused them emotional stress.
The employee (a correctional officer) and his lawyer made public statements that were reported by the media. Among the lawyer’s statements was the following, as quoted on a website and in a newspaper article:
“There is a public interest in rooting white supremacists out of a jail,” Falconer said. “Keep in mind that in addition to being in a position to harass their fellow racialized officers, these white supremacist officers are in charge of inmates, often inmates that are black.”
The statements by the employee and his lawyer were in relation to an application that the employee had commenced against the Ministry of Community Safety and Correctional Services and his union at the Human Rights Tribunal of Ontario. The union claimed that the statements “fanned racial tension” in the workplace which had abated considerably in the past few years.
The adjudicator held that the reasonable inference to be drawn from the quoted statements was that some non-racialized correctional officers were responsible for the racist hate letters sent anonymously from 2005 onwards to mostly racialized correctional officers at the jail.
The union filed a grievance against the employer’s failure to make a public statement against the comments. The adjudicator found that the lawyer’s statements disparaged non-racialized correctional officers because they would be associated in the public’s mind as “white supremacists”. Some of those employees suffered emotional stress as a result, and certain of them were subjected to contempt and abuse inside and outside the jail. They claimed that this was a health and safety issue, requiring a response from the employer.
The union’s grievance claimed that, among other things, the Occupational Health and Safety Act‘s “general duty” on employers in section 25(2)(h) to take every precaution reasonable in the circumstances for the protection of workers, required the employer to issue a public response to the statements from the worker and his lawyer, given the health and safety issues – including stress – suffered by employees as a result. Effectively, the union’s argument was that the employer’s duties under the OHSA required it to publicly support the non-racialized employees in order to reduce their stress and the hostility that they suffered as a result of the lawyer’s statements.
The employer argued that it cannot have breached the OHSA because there is no evidence of “serious illness” resulting to any of the employees, and that serious illness must be something more than “tension, stress, irritation or unhappiness”.
The parties agreed that the employer’s conduct must be judged against the standard of reasonableness. The adjudicator held that the employer had acted reasonably in not issuing a press response. If the employer were to start issuing public statements in reaction to public comments on cases that were before tribunals, there would be significant policy consequences for the employer, as the Crown.
The adjudicator decided, though, that ideally the employer would have issued an internal statement through a joint union-management statement, but the employer’s approach – to deal with employees’ issues as they arose – was within the range of reasonable responses.
As such, the adjudicator dismissed the grievance.
Ontario Public Service Employees Union (Blacquiere et al) v Ontario (Community Safety and Correctional Services), 2015 CanLII 67994 (ON GSB)