Over the last year, much attention has been paid to the September 2016 Bill 132 amendments to the Ontario Occupational Health and Safety Act (the “OHSA”) and the obligations they place on employers with regards to workplace harassment. In a recent decision, George Brown College of Applied Arts and Technology v Ontario Public Service Employees Union (“George Brown College”), an arbitrator ruled that the OHSA does not make employers accountable to compensate employees for workplace harassment perpetrated by managers or other employees. The arbitrator considered the OHSA’s application because the OHSA is deemed to be incorporated by reference into every collective agreement in Ontario.
The grievor claimed she had been harassed and bullied at work by her former manager, but she never filed a formal complaint. The relevant provision of the collective agreement regarding bullying/psychological harassment required the employer to investigate formal complaints of harassment, but it did not provide for any remedies for the harassment itself. Given that a formal complaint was never made, the arbitrator found that the employer was not required to investigate, and as such had not violated the collective agreement.
After finding that the explicit terms of the collective agreement had not been violated even if the grievor was harassed by her manager, the arbitrator considered the OHSA. The arbitrator found that, while under the OHSA the employer could be held accountable for acts or omissions such as failing to investigate allegations of harassment, the employer could not be held responsible to employees for the harassment perpetrated by managers or other employees.
What does this mean for employers?
The arbitrator’s decision in George Brown College is helpful to employers, and employers may wish to rely on the decision if facing similar claims because it provides a favourable precedent.
Nonetheless, in our view, the decision fails to consider whether employers’ more general obligations under the OHSA were violated. Under section 25(2)(h) of the OHSA, employers have an obligation to take every precaution reasonable in the circumstances for the protection of a worker. Supervisors have an identical obligation under section 27(2)(c). Since the OHSA is meant to be interpreted broadly, these sections obligate supervisors and employers to take all reasonable precautions to protect workers, including, in our view, in situations where the worker requires protection from the harassing behaviour of a manager or colleague.
However, the responsibility to maintain a workplace safe from workplace harassment, among other hazards, does not rest solely with supervisors and the employer. An Internal Responsibility System (“IRS”) underlies the OHSA. The IRS requires each person in the workplace to participate in maintaining a safe workplace and in keeping workers healthy. In the context of workplace harassment, the IRS likely requires workers to report incidents of workplace harassment, even if the incident does not directly involve those workers.
To successfully meet their OHSA obligations, employers should work towards creating a culture of shared responsibility for hazard reduction by enforcing workers’ obligation to minimize hazards by reporting and addressing safety issues, including complaints and incidents of workplace harassment. Having a general “open door” policy is not enough to show that the employer is serious about addressing workplace harassment issues, and more generally about taking every reasonable precaution to protect workers. The sensitive nature of harassment complaints can present a barrier to the candid disclosure of incidents of workplace harassment. However, creating, implementing and communicating thoughtful programs and procedures for employees to bring complaints forward will help foster the desired behaviours, and will ultimately help supervisors and employers leverage the IRS to fulfill their obligations under the OHSA. Taking these steps will help employers minimize liability related to workplace harassment, even if they come before an adjudicator who, unlike the adjudicator in George Brown College, interprets the OHSA such that the OHSA holds employers responsible for harassment by their employees.
This blog is provided as information and a summary of workplace legal issues.
This information is not intended as legal advice.