The Bill 168 changes to the Occupational Health and Safety Act (“OHSA / the Act”) were lauded as proactive legislation to combat harassment, bullying and violence in the workplace. However, three years after the changes to OHSA, the protections have not gone far enough.
The OHSA amendments require employers to prepare policies to address workplace harassment and violence and create programs to implement those policies. The workplace violence provisions, however, also impose additional duties on employers such as controlling the risk of violence in the workplace. This means that the Act more directly requires an employer provide an environment free of violence than free from harassment.
In a 2011 case the Ontario Labour Relations Board (“the Board”) considered the new provision on harassment as well as the existing anti-reprisal section of OHSA. The Board found that it did not have the authority to enquire into the merits of a harassment complaint because the Act did not impose on an employer the obligation to provide a harassment-free workplace. If an employee was disciplined or terminated for making a complaint, the Board held that it did not have the jurisdiction to intervene. This case has been followed by many others at the Board.
Given the prevalence of bullying in the workplace, which continue despite the changes to OHSA, it appears that more is required. One solution is for the OHSA harassment provisions to mirror the workplace violence provisions. This would give the Board the authority to review the underlying harassment, when a complaint is made.
As a worker, you should ensure that your employer has a policy and a program in place for both workplace violence and harassment.
For more information regarding the law about sexual harassment see here.
If you have been terminated or disciplined for requiring this, or for making a complaint under such a program, and you want to speak with an employment lawyer who understands this area of the law, please contact us at [email protected] or 647-633-9894.
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