Shlomo Conforti, Applicant v. Investia Financial Services Inc. and Industrial Alliance Insurance and Financial Services Inc., Responding Parties [2011] O.L.R.D. No. 3623

Does Bill 168 require employers to provide a harassment-free environment for employees? Does it protect employees from reprisal for filing an allegation of harassment?  

Facts

The applicant is a financial advisor whose employment was terminated from Investia Financial Services for insubordination.  He appealed this termination to the ORLB on the grounds of that the termination was made in retaliation for his filing a harassment complaint against the company. 

The applicant’s alleged harassment began with two emails from compliance officers who, in accordance with their job duties, pointed out to Mr. Conforti some technical issues affecting a client file, in one case, and the advisor's daily deposit, in the other. The applicant took great offense to being corrected by compliance officers and found that their criticisms amounted to harassment.  He responded to each with anger (using capital letters in one) and indignation (demanding to know the employee's identity and authority in the other).  

A customer service manager responded on behalf of one of the compliance officers asking the applicant to treat his employees with respect; they were simply doing their job.  The applicant felt harassed by this correction, and responded that the manager was both incompetent and disrespectful.  

On behalf of the Customer Services Manager, the Assistant Chief Compliance Officer responded in an email addressed to all parties in which he reprimanded the applicant for verbally abusing his staff and apologized to his staff for having to put up with the applicant’s non-sense (sic). The applicant responded to this email with a scathing indictment of the Assistant Chief Compliance Officer’s language skills (because of the misspelling of “nonsense”. This was followed up by a formal harassment complaint which contained such veiled threats as “I’m sure that at that opportunity Investia/IA Executives will wish to re-visit the unique situation where the perpetrators of harassment, its investigators, its judges and its executioners, were all and one the same people”.  Two days after sending that harassment complaint, the applicant’s employment was terminated.

Issues

1. Has Bill 168 changed the way the OLRB deals with harassment cases?
2. Does the complaint fall within the jurisdiction of the OLRB
3. Does the complaint have prima facie merit?

Answers

1. Yes
2. No
3. No

Reasons

1. Bill 168 changes the way the OLRB deals with certain aspects of workplace harassment claims under the Occupational Health and Safety Act. The OHSA (as amended) puts only two legal obligations on employers:  a) To create a workplace harassment policy and program b) To provide workers with information and instruction as appropriate.  The OLRB can therefore hear cases which allege the failure of the employer to fulfill these two obligations. The OHSA does not, however, oblige employers to keep the workplace harassment free, nor does it give employees any particular rights to be free from harassment in the workplace or to be free from reprisal for filing harassment claims.   This means that the OLRB  does not have jurisdiction over those kinds of issues, which would be better dealt with in a grievance arbitration or through the courts.
2. Since this case involves a claim of reprisal due to filing a harassment complaint, it does not fall within the jurisdiction of the OLRB.
3. Even if it did fall within the jurisdiction of the OLRB, this case has no prima facie merit. The Board found that the emails sent by the compliance officers were not harassing messages but neutral work-related assignments. It also found that the applicant had a history of using “unprofessional and derogatory language” and of filing “unreasonable and unfounded harassment complaints”.  It found that, on the face of things, the employer acted reasonably in terminating the belligerent applicant.