It should be common knowledge that changes were made to the Occupational Health and Safety Act (“the OHSA”) that have been in effect since September 8, 2016 (and if it’s not common knowledge, you haven’t been reading our previous blogs on the subject). One of these changes allows employees who have been sexually harassed at work to file a complaint under the OHSA.
Prior to September 8, 2016, an employee’s only recourse to address sexual harassment at work was to file an application at the Human Rights Tribunal of Ontario. Now employees may choose where to bring their complaint. Because of how recent the changes to the OHSA are, there are no reported cases where an employee has been terminated in connection with a workplace sexual harassment complaint. However, the example below still illustrates the consequences an employer may face if it terminates an employee for making a sexual harassment complaint.
In Thompson v 580062 Ontario Inc., a restaurant employed Ms. Thompson as a night manager. Ms. Thompson accused the restaurant owner of calling her rude names and making profane statements on November 8, 2014. Ms. Thompson also accused the owner of grabbing her and pushing her toward the door. Ms. Thompson reported the incident to her manager on the same evening.
Two days later, Ms. Thompson attended the restaurant to check her work schedule and found she was not scheduled to work. The manager told Ms. Thompson that the owner had requested that she not be scheduled. Ms. Thompson then reported the incidents of November 8, 2014 to the Ministry of Labour.
On November 18, 2014, Ms. Thompson sent the owner an email complaining of workplace harassment and violence, and requested a copy of the restaurant’s workplace violence and harassment policies. On November 21, 2014, the owner advised Ms. Thompson that the Ministry of Labour had commenced an inspection under the OHSA. The owner never provided the requested policies to Ms. Thompson, and she was never scheduled to work again despite repeated requests.
As mentioned above, the OHSA has provisions on workplace harassment, workplace violence and the duties of employers to protect workers and prepare policies with respect to workplace harassment and violence.
The OHSA also has reprisal provisions that prohibit employers are also prohibited from dismissing, disciplining, imposing a penalty upon a worker or intimidating a worker because they have sought enforcement of the OHSA. In order for there to be a breach of these reprisal provisions, there must be the exercise of rights by a worker, a prohibited action on the part of the employer and a causal connection between the two.
The adjudicator was satisfied that at least part of the employer’s reason for ceasing to schedule Ms. Thompson was connected to the fact that she raised health and safety issues in the workplace.
The remedy for a reprisal is to reinstate the discharged employee and to provide the employee with lost wages from the date of the discharge up until the date of the reinstatement. Depending on how backlogged the Ontario Labour Relations Board is, those wages could add up.
If the employee does not wish to return to work for the employer, which will usually be the case where the employee has complained of workplace violence or harassment (including sexual harassment), the complainant is entitled to damages for loss of employment in lieu of reinstatement. These kinds of damages are meant to compensate for the loss of the job itself. Additionally, employees are also entitled to damages for loss of wages (i.e. to compensate for the wage loss experienced as a result of the termination, subject to the duty to mitigate). Despite the clear overlap between these two kinds of damages, adjudicators have been known to award both kinds of damages, which could lead to a steep award. In one case, a two-year employee was awarded 8 months’ pay.
Lessons to be learned
- Make sure you have a written policy to investigate workplace harassment complaints, which has been a requirement under the OHSA since September 8, 2016. For information about our fixed fee service, click here.
- Investigate all workplace harassment complaints promptly.
- If an employee raises health and safety concerns, be very careful about taking any disciplinary action, even if the decision to discipline the employee in question precedes the employee’s concerns.
In the recent decision of Andros v Colliers Macaulay Nicolls Inc., the Ontario Court of Appeal (“OCA”) found yet another termination clause to be unenforceable. In this decision, the OCA reaffirmed and clarified various principles surrounding the enforceability of such clauses.
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