In what appears to be a departure from a growing line of cases, the Ontario Labour Relations Board has permitted an employee to advance her claim that the employer violated the Occupational Health and Safety Act when it fired her after a manager allegedly confronted her in an angry manner.
The employee, Ashworth, alleged that the manager demanded that she close the door and then positioned herself in front of the closed door and started screaming and pointing her finger in the employee’s face. The employee claimed that she became afraid and was asked to be allowed to leave, but the manager continued to be abusive. The employer subsequently terminated her employment.
The employer appears to have argued that the employee’s complaint did not make out a safety-reprisal case because the incident did not raise workplace safety issues under the Occupational Health and Safety Act, and therefore there was no basis for the employee’s claim that she was fired for raising safety issues.
That argument flows from a line of cases, of which Conforti v Investia Financial Services Inc, 2011 CanLII 60897 (ON LRB) is most notable. In that case, the OLRB stated that “it appears the OHSA only requires an employer to put a workplace harassment policy and program in place and to provide a worker with information and instruction as appropriate”, but that the OHSA does not actually require the employer to prevent harassment. As such, an employee’s claim that she was fired for asking the employer to prevent harassment does not engage the OHSA and cannot form the basis for a reprisal claim.
The OLRB, in Ms. Ashworth’s case, was not persuaded that the case should be dismissed at this stage for failure to disclose a prima facie reprisal case. Although the decision does not say it, the OLRB may have felt that the manager’s conduct might constitute workplace violence – rather than harassment – in which case the employee’s complaint could possibly succeed. The OHSA does require employers to take reasonable steps to avoid workplace violence – but not harassment.
Ashworth v Boston Pizza, 2013 CanLII 20917 (ON LRB)
