Illegal For Harassment Program To Allow For “Preliminary Assessment”, Early Dismissal, Employee Arguing At OLRB

Explore:  Canada Harassment OHSA OLRB

A provision in a harassment program allowing for a preliminary assessment of complaints, rather than an investigation,  and for early dismissal, violates the Occupational Health and Safety Act, an employee is arguing before the Ontario Labour Relations Board.

The employee is relying on section 32.0.6(2) of the OHSA which requires that a harassment program “set out how the employer will investigate and deal with incidents and complaints of workplace harassment”.

The employee appealed a Ministry of Labour inspector’s refusal to Order the employer to revise its harassment program to correct what the employee argued were inconsistencies with the requirements set out in Bill 168. That Bill amended the Occupational Health and Safety Act to add provisions on workplace violence and harassment.

The OLRB decided that the employee’s appeal could proceed as it addressed whether the program’s language was sufficient to comply with the Occupational Health and Safety Act.

One expects that a “preliminary assessment” of a harassment complaint will, in appropriate simple cases, constitute an “investigation” under the OHSA.  The OHSA does not specify what the investigation must look like or how long it must take.

Nevertheless, this case is a reminder to employers that a workplace harassment program must have all of the contents required by the OHSA, including setting out “how the employer will investigate and deal with” harassment complaints.

Abick v Ministry of Government Services (Ontario Government), 2013 CanLII 76546 (ON LRB)

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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