Basing a harassment-reprisal complaint on a text message is risky when one cannot prove that the text message was ever sent.
The employee, who worked for a pool company, was moved around to different jobs because he had trouble carrying out many of his duties. Finally the employer found a warehouse position in which the employee excelled. They presented the job description to the employee on November 12, 2010. The employee raised concerns with the job, and the employer stated that if he did not take that job, there were no other jobs left for him. The employee refused to take the job, and the employer sent him a Record of Employment stating that he had quit. (The OLRB found that the employer had actually terminated the employee).
The employee filed a reprisal complaint under the Ontario Occupational Health and Safety Act relying on the harassment provisions introduced by Bill 168.
At the OLRB hearing, the employee claimed to have sent his employer a text message in the early morning before the meeting. The employer denied ever receiving it. The employee provided the OLRB with a copy of a document that he said was the text message:
“Hi Elton, this is Oneal. Nov 12. I have been very patient and calm with the ill treatment that I have been receiving from supervisor/manager Alex. You said it yourself, ‘you two don’t get along’. That’s not true I have been respectful and calm with everything that she has said to me and about me. You said, ‘ill [sic] help you to be on her good side.’ Her treatment, verbal harassment, has gotten worst [sic]. I have been yelled at, called a turkey and a banana. This has been going on for longer than a month. I ask you to look into this again but this time to stop it completely I don’t deserve to be bullied in the workplace. I am a hard worker. I do my best everytime [sic]. I lifted things that are normally too heavy for me to manage in order to be a team player. I am available to talk to you about this issue. However you have been present many times and therefore know what issues I am seeking a solution for.”
The OLRB found that the employee’s evidence about the text message was “dubious”. The OLRB stated that the document purporting to be the text message was dated three days after his termination, and that the employee had explained that this was because he subsequently sent a copy of the text message to his e-mail address, and then printed the e-mail from his computer. Also, it was odd that the message began by the employee noting the date of November 12. The OLRB stated, “Why did it occur to Mr. Walters to specify the date within the body of the text message? And what prompted him on the morning of November 12 to prepare a remarkably lengthy and detailed text message, seemingly on the spur of the moment as he made his way to work?” Also, contrary to the contents of the alleged text message, there was no evidence adduced in the hearing that the employee ever previously spoke to the employer about the supervisor, Alex, or that the employer was aware of any previous tension between the employee and the supervisor. As such, the reliability of the employee’s evidence was in question.
The OLRB concluded that the employer did not terminate the employee for complaining about harassment.
The OLRB has previously held that a harassment complaint cannot form the basis of a reprisal complaint under the OHSA. See our previous post at: http://www.occupalhealthandsafetylaw.com/bill-168-update-olrb-will-not-hear-harassment-reprisal-complaint-under-ohsa
Walters v. PPL Aquatic, Fitness and Spa Group Inc., http://www.canlii.org/en/on/onlrb/doc/2012/2012canlii77/2012canlii77.html
