K. Annette Harper, Applicant v. Ludlow Technical Products Canada. No 18, 2011.

What kinds of complaints concerning workplace harassment can the OLRB hear?     

Facts

 An employee of Ludlow Technical Products Canada filed a complaint with the OLRB under Section 50 of the OHSA. Section 50 reads as follows:

 (1) No employer or person acting on behalf of an employer shall, (a) dismiss or threaten to dismiss a worker; (b) discipline or suspend or threaten to discipline or suspend a worker; (c) impose any penalty upon a worker; or (d) intimidate or coerce a worker, because the worker has acted in compliance with this Act or the regulations or an order made there under has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act.

 The employee claimed that her employer failed to investigate her workplace harassment complaint and that it failed to comply with its posted harassment policy and the procedure outlined in the Employee handbook.   Since filing her complaint, the employer has refused to file her claims for WSIB and STD.  

 Issues

1. Does the OLRB have the jurisdiction to hear this case under Section 50 of the OHSA?
2. Can the OLRB hear any kind of claim involving workplace harassment under Section 50 of the OHSA?
3. Is there any forum which has the jurisdiction to hear a case involving the employer’s failure to investigate a complaint of workplace harassment? 

Answers

1. No
2. Yes
3. Yes

Reasons

1. The worker in this case was not acting in compliance with the OHSA when she filed a harassment complaint because the OHSA does not give workers the right to file such complaints without fear of reprisal (like it does for workplace violence).  Also the worker was not seeking enforcement of the OHSA because nothing in the OHSA imposes a duty upon the employer to create a harassment-free workplace.
2. The OLRB can hear claims filed by workers who suffered reprisals for complaining about the employer’s failure to create a workplace harassment policy, or about its failure to include specific legislated things in the policy, such as measures and procedures for workers to report incidents of workplace harassment to the employer. 
3. Disgruntled employees whose employers do not investigate workplace harassment claims have recourse to the courts and to grievances.

NB: The Board member quoted heavily from the Investia case [2011] which had analogous grounds and circumstances, except that the employee in that case had been terminated and was actually found to be the subject (and not the object) of harassment.