[ author: Adrian Miedema
The Ontario Labour Relations Board, in a preliminary decision in a case, has held that one shouting match between a probationary employee and a co-worker in which the probationary employee alleged that the co-worker called him a “stupid f[***] proby”, was likely not workplace harassment under the Ontario Occupational Health and Safety Act. The employer later dismissed the employee, and the employee alleged that his dismissal was a reprisal under the OHSA for raising concerns about workplace harassment.
The probationary employee described the incident as follows (the stars in square brackets are mine):
“- March 28th approx 8:00 pm confronted by Brian W. at my workstation
- [Brian] told me I was doing things “wrong” and am “unorganized” and I was “losing time”
- I replied with “I’m sorry. I’ve tried your way. It just doesn’t work comfortably for me!”
- Brian then threw his arms up in the air in frustration
- [Brian] started to raise his voice and tell me that was how he “wanted it done”
- I replied “with all due respect! Your way has me walking to the end of the table and all the way around it.”
- Brian then yelled “Fine then! I’m done with you! You’re a stupid f[***] proby that won’t f[***] listen.”
- I then said “F[***] you” “You don’t talk to me like that!” “I deserve a little respect as person!”
- Brian repeated himself while walking away
- I replied “F[***] you”
- Brian then told me to go and quit
- Brian was walking away backward yelling “good bye” “quit” “I’m going to have your job by the end of the night” while waving at me in a good-bye manner
- [Brian was] laughing and taunting me. It was humiliating and uncalled for! In front of co-workers (Kirk and John) (25 ft away)”
The OLRB stated that “it is not apparent that what has been described constitutes ‘workplace harassment’ within the meaning” of the OHSA. “As argued by the employer in its response, it is not apparent that Brian engaged in a course of vexatious conduct.”
It appears from this and other decisions that the OLRB is enforcing the “course of conduct” requirement in order to have workplace harassment. That is, one single event will usually not be “workplace harassment” under the OHSA.
In this preliminary decision, the OLRB stated that “it appears therefore that this application should be dismissed without a hearing.” However, the OLRB did not dismiss the application but rather gave the employee the opportunity to file submissions as to why the case ought not to be dismissed.
Vey v. Keeprite Refrigeration: http://www.canlii.org/en/on/onlrb/doc/2012/2012canlii3572/2012canlii3572.html
Categories: Caselaw Developments