Ensuring workplace health and safety is always an important priority for employers, and is even more so now that Ontario’s Occupational Health and Safety Act (the “OHSA”) places obligations on employers with respect to workplace violence and harassment. As a recent case demonstrates, employers should be diligent regarding the development and implementation of their workplace harassment policies, and in responding to employee concerns regarding those policies.
The Moneta Marketing Case
The OHSA does not provide workers with a right to a harassment-free workplace, nor does it require employers to create any specific kind of workplace harassment complaints process. However, employers must create workplace harassment and violence policies, including complaint procedures, of some sort.
Recently, in Abigail C de los Santos Sands v Moneta Marketing Solutions Inc, 2014 CanLII 33527 (ON LRB) (“Moneta Marketing”), an employee working as a human resources professional at an investment and marketing company felt threatened by irate investors who would attend at the workplace from time to time. The employee raised these concerns with her employer, and also requested the development of a workplace violence and harassment policy. The employer did not respond to the requests. Although the employee contacted the Ministry of Labour about her concerns, she requested that a Ministry inspector not visit the workplace based on a fear that the employer might terminate her employment as a result.
Despite the employee’s concern for her job, an inspector attended at the workplace in response to a similar complaint from another employee. The inspector issued orders to the employer that, among other things, required the development of a workplace violence and harassment policy. The employee’s position with the company was terminated the following day. When the employee asked why she was terminated, the employer responded that “everything was fine up until the Ministry came in yesterday and that pushed them over the edge”.
The employee launched a number of complaints stemming from the termination of her employment, including one to the Ontario Labour Relations Board (the “Board”) arguing that the employer’s action was a reprisal against the employee for seeking enforcement of the OHSA. Although the onus is on the employer in such cases to demonstrate that its decision to terminate the employee was unrelated to the employee’s seeking enforcement of the OHSA, the employer chose not to participate in the hearing.
Perhaps unsurprisingly, the Board upheld the employee’s complaint and, in the absence of an explanation from the employer, concluded that at least part of the employer’s reasoning for terminating the employee was due to the fact that she raised health and safety concerns. The Board’s usual practice in such circumstances is to reinstate employees to their previous position (with back pay). However, the employee in Moneta Marketing did not wish to return to her previous employer and, as a result, the Board awarded the employee wages from the date of her termination until the time she secured new employment (which amounted to four weeks’ wages).
Take Home Lessons
The Moneta Marketing case illustrates the importance of developing workplace violence and harassment policies, and in communicating those policies to employees. Where an employee raises concerns regarding harassment or potential violence with members of management, employers should take such concerns seriously and address them in accordance with to the appropriate workplace policy.
Further, and as illustrated in Moneta Marketing, employers should be wary of terminating an employee while any complaints raised by that individual related to the OHSA are outstanding, as such an action may be interpreted as a reprisal under the OHSA. In the event that termination is necessary and a complaint is filed, it will be the employer’s obligation to demonstrate that its decision terminate the employee was wholly unrelated to the employee exercising his or her rights under the OHSA. For this reason, employers should keep extensive records of any discipline and/or termination decisions and, perhaps most importantly, employers should actively participate in the OHSA hearing process if possible.