[1995] OLRB Rep. November 1371
1517-94-OH Pauline Au, Applicant v. Lyndhurst Hospital, Responding Party
BEFORE: K. G. O'Neil, Vice-Chair, and Board Members R. W. Pirrie and Pauline R. Seville.
DECISION OF KATHLEEN O'NEIL, VICE-CHAIR AND BOARD MEMBER PAULINE R. SEVILLE; November 23, 1995
This is a complaint under the Occupational Health and Safety Act, (referred to below as OHSA) in which the responding party asked that the matter be dismissed without a hearing for want of a prima facie case. After the hearing on the preliminary motion, the panel gave the parties the opportunity to make further submissions in writing on whether the Board should on its own motion stay the proceedings in light of proceedings which had been commenced before the Human Rights Commission. In response to that request, the parties advised that Ms. Au had withdrawn the complaint from the Human Rights Commission and the employer took the position that the issue of a stay of the Board's proceedings was no longer an issue. In the result, neither party argued for deferral and the question of whether to stay the Board's proceedings in light of the proceedings outstanding at the time of our request for submissions is now moot.
We are required to assume at this stage that everything the applicant claims is true and provable, although at a hearing it may turn out that crucial elements are either untrue or unproven on a balance of probabilities. The Board has considered the parties' submissions in that light and is of the view that the matter ought not to be dismissed without a hearing for want of a prima facie case. Whether or not this is a valid complaint will then be determined on the basis of the evidence and submissions of the parties. Reasons for this ruling are reserved until the conclusion of this matter.
The matter is referred to the Registrar to be set down for hearing after consultation with the parties. This is not an undertaking that the matter will be scheduled on consent, but only an indication that the Registrar's office will contact the parties as to their availability before setting the next hearing date.
DECISION OF BOARD MEMBER R. W. PIRRIE; November 23, 1995
I dissent from this decision.
In its simplest form, this complaint centres on the following allegations:
(1) Ms. Au's belief that she was sexually harassed at work by her supervisor.
(2) The harassment caused her to feel unsafe at work.
(3) As a consequence Lyndhurst Hospital was in violation of section 25(2)(h) of the Occupational Health and Safety Act - "...an employer shall take every precaution reasonable in the circumstance for the protection of the worker".
(4) Ms. Au's subsequent termination was not due to the hospital's financial constraints, but was in fact a reprisal for her having reported this sexual harassment incident, and
(5) The reprisals are a violation of section 50 of the OHSA, and as such come before the Ontario Labour Relations Board under section 50(3).
In my view the first issue the Board must decide is whether it has jurisdiction to hear this case. Having heard the submissions of the parties, I would uphold the respondent's preliminary motion that sexual harassment in the workplace is not an issue covered by the OHSA, and as such I would dismiss the application on the basis that the Board is without jurisdiction to hear Ms. Au's complaint.
Initially the panel decided not to decide the jurisdiction issue, and instead in our decision of July 27, 1995 called for submissions from the parties as to whether we should, in light of Ms. Au's having filed her complaint initially with the Human Rights Commission, exercise our discretion and stay the matter, and in my view at least, defer the matter to the Human Rights Commission. Ms. Au's response was to withdraw her complaint before the HRC, and made no submissions on the issue of deferral. The majority of this panel are now of the view that the question of deferral to the HRC is no longer before us. In the alternative to my initial basis for dissent, I dissent from that view of my colleagues. Whether or not the Board chooses to defer to another forum, which the Board does on numerous occasions, is not a function of whether a party has or has not started a proceeding in the other forum. The decision is based on whether the other forum is the appropriate one in which a given case should be heard. In my view Ms. Au's action in withdrawing her HRC complaint is nothing but an attempt to prevent this Board from exercising a perfectly legitimate and proper discretion. I am unmoved by her action, and in the alternative to dismissing her application on the question of jurisdiction, I would require her and the respondent to make the submissions originally requested. If Ms. Au fails to do so, the Board should then decide whether to exercise its discretion based on its own motion. Needless to say based on what I have already noted, and what follows, I would in the alternative refer Ms. Au back to the HRC.
My following comments then are the reasons for my decision that the Board does not have the jurisdiction to hear this matter.
Let me at the outset emphasize that my comments should in no way be taken as minimizing my concern for the issue of harassment in the workplace. And let me also emphasize that I find it regrettable in the extreme that an individual with a complaint under the HRC must wait years to have their complaint dealt with. Nor should my comments be construed as having prejudged Ms. Au's belief that she was sexually harassed and as a consequence has a legitimate complaint. The legitimacy of her complaint will be determined on the basis of evidence heard in the appropriate forum.
My difficulty with this decision is that the majority of the panel have, in my respectful opinion, misread the scheme of Ontario's legislation as it applies to this, and by inference, other situations giving rise to an employee feeling unsafe in the workplace. There are circumstances where a worker may, with good reason, feel unsafe in the workplace. However it is clear not all circumstances fall within the parameters of the OHSA.
Example
- a qualified truck driver, driving a licensed truck on the highway - another
driver drives on the highway in such a way as to endanger the truck driver -this is a matter for the police under the Highway Traffic Act - that the truck driver feels unsafe in his workplace is surely not a matter relative to the OHSA
Example
- a worker brandishes a revolver in the office in such a way as to endanger his fellow workers - this is a matter for the police under the Criminal Code - that his fellow workers felt unsafe in their workplace is surely not a matter relative to the OHSA
The Board must look at the cause of a worker believing he or she is unsafe in the workplace in the first instance, in order to determine if the cause is one which falls within the ambit of the OHSA.
If one reads the OHSA in its totality it is, in my opinion, manifestly clear that it was never intended by the legislature that a feeling of being unsafe at work because one is sexually harassed was an issue to be covered by the OHSA. It is an enormous stretch of the intent of the Act as I understand it, and an enormous stretch of the language of that Act as I read it to suggest that sexual harassment which leads to a sense of feeling unsafe fits within the parameters of section 25(2)(h).
Conversely it is, in my opinion, abundantly clear that the HRC was put in place by the legislature to specifically deal with complaints such as Ms. Au's. The processes under the HRC are designed to deal as effectively as possible with the issue of harassment in all its forms, and through interventions such as coaching, counselling, training, etc. to correct individual and group behaviour which offends the Act. At its best the Ontario Labour Relations Act results in an adversarial adjudicated decision. The outcome of an OLRB adjudication will result in a decision - yes the adverse employment event which the employee experienced was as a consequence of having reported an unsafe working condition - or, no - the two events were not related. The issue of sexual harassment in the workplace may very well not get dealt with in our process. That cannot be the intended or desirable outcome for the employees in general, the complainant, the accused harasser, and the management directly involved, or for society at large.
By finding that Ms. Au's complaint should not be dismissed without a hearing, the majority of the panel has decided that the OLRB has jurisdiction to hear the matter. It is my opinion that hearing this matter results in so many inconsistencies that it can only be the case that the legislators never intended such a course of action. Just a few such inconsistencies emphasize my concern.
This case concerns itself with a violation of the OHSA stemming from sexual harassment in the workplace. To admit sexual harassment under the OHSA is to admit harassment in the workplace based on any of the prohibited grounds set out in the HRC e.g. race, colour, sexual orientation, age to name a few.
For example, I am an older worker, I believe my supervisor is harassing me because I am an older worker. I complain to my employer that I feel unsafe at work because of the harassment, something happens to my employment for whatever reason - the OLRB will entertain my complaint that the action is a reprisal for my having complained about the perceived harassment due to my age. I can only repeat that the OHSA was not intended to deal with such issues. To read the OHSA in such a way that it does, is to significantly alter the legislative scheme of the province which is not the role of the OLRB.
Up until now employers had a fairly clear understanding as to what to do in a case of a workplace harassment situation. One contacted the HRC for assistance in dealing with the matter. Not so if this decision stands. Any employer who does not also contact the Occupational Health and Safety Branch puts themselves at considerable risk. Now we will have on hand an investigator from the HRC and one from the OH&SB. That cannot be the original intention, and aside from making work for already overworked government inspectors that cannot be a result which the Board should cause to happen.
Reading the OHSA to cover workplace harassment gets employers and complainants into some very dangerous territory with far reaching consequences. While this is not specifically a work refusal case, the fact of admitting harassment leading to an unsafe workplace as a condition covered by the OHSA will, in the opinion of many, lead to work refusals. The OHSA is very clear in its direction to employers in the face of a work refusal. It provides that an employer may assign another worker to do the work of a complaining employee, but prescribes the circumstances under which this may occur. The employer must advise the substituting worker of the complaining workers refusal to work, and of his or her reasons for the refusal. (see section 43(11)
(emphasis added)
For example, Mary goes to the company and complains her supervisor Frank is sexually harassing her. Mary's job is critical to the company's operation and the company asks Susan to do the work. First however and before the completion of any investigation the company must advise Susan that Mary has reasonable grounds to believe the workplace is unsafe because her supervisor Frank, is sexually harassing her.
In my respectful opinion such a scenario was never contemplated and was never intended by the drafters of the OHSA. Under the Act the requirement that causes the employer to divulge that the supervisor may be a sexual harasser is that the complainant initially "believes", and following an in-house investigation, "has reasonable grounds to believe". One has no trouble envisioning the line-up of lawyers to launch defamation of character lawsuits on behalf of the supervisor against both the complainant and the employer. Will the courts accept as a standard of proof that the complainant had "reasonable grounds to believe"? Will the courts accept an employers defence that the OHSA required it to divulge the complainant's accusation? One cannot read one provision of the OHSA i.e. section 25(2)(h) without reading the Act in its entirety and reasonably considering all of the consequences of doing so.
Certain institutions in our society have complex relationships between the employees -both management and non-management, and the users of the services of the institutions. A case in point is the university setting. Recognizing this, most colleges and universities have put in place elaborate sexual harassment programs. Such programs aside, let me use the example of two females being sexually harassed by the same individual - he a university professor. One of the females is a student in the professor's program, the other is a university employee in the professor's department. This decision to hear Ms. Au's complaint stands for the proposition that the student can only file a complaint with the HRC, whereas the employee can have her case head before the HRC, or if she suffers some form of adverse employment consequences have it heard before the OLRB. The same individual doing the sexual harassing, two different courts of recourse and potentially because of the processes, two different results. This cannot be what the legislators intended.
These and many other logical inconsistencies serve to point out, in my considered opinion, that the majority decision in this case is fundamentally wrong on the grounds that it exceeds the Boards jurisdiction as represented by all of the relevant Ontario legislation. As a last note, let me again say that I regret the position that complainants to the HRC find themselves as a result of delay. That in my view is something the government should address. That said, I have a genuine concern that to suddenly open the OHSA to all forms of harassment will have many and far reaching consequences:
the workers who the OHSA was originally intended to protect are going to be less well served due to the inspectors being involved in workplace harassment cases;
the workers, unions and employees who the Labour Relations Act is designed to regulate will be less well served due to the Boards time being occupied with workplace harassment cases, and
the workplace in general and those employees who experience harassment in the workplace in particular, may ultimately be less well served due to the nature of the Board's adjudicative process, as opposed to that of the HRC, designed as it is to specifically deal with such situations.