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Sexual Harassment: A Health and Safety Hazard?
A new avenue may be opening up for employees pursuing sexual harassment
claims: the complaints procedure under Ontario's Occupational Health and
Safety Act. This possibility has been raised by a preliminary decision of
the Ontario Labour Relations Board in Au v. Lyndhurst Hospital, released on
June 20, 1996.
Pauline Au is alleging four incidents of unwanted sexual touching by her
supervisor as well as other forms of harassing behaviour, and claims that
the supervisor's conduct has adversely affected her health. Au reported the
conduct to management between January 1992 and March 1993, and the hospital
took a series of steps, including counselling the supervisor and holding a
workshop on workplace harassment. However, the hospital ultimately took the
position that the supervisor's conduct did not breach Au's human rights.
In November 1993, Au was terminated following a restructuring of her
department. She has alleged that the termination was in retaliation for
reporting the incidents of sexual harassment and that, in making these
reports, she was acting in accordance with s. 28(1)(a) and (d) of the OHSA.
These provisions require workers to work in compliance with the Act and to
report to the employer any contraventions of the Act or the existence of any
hazard of which the worker is aware. Au filed a complaint with the Ontario
Labour Relations Board, claiming that her dismissal was a reprisal in
violation of s. 50(1) of the OHSA.
The Employer: Sexual Harassment not an OHSA Matter
The employer brought a motion that Au's case be dismissed without a
hearing, contending that, even if everything alleged by Au were true, she
would not have a case for relief under the OHSA. The employer's principal
argument was that the Act was designed to deal with physical structures,
objects and substances in the workplace, and not to regulate interpersonal
contact.
The hospital argued that the duty of an employer set out in s. 25(2)(h) to
take reasonable precautions to protect workers had to be read as referring
to protection from dangers presented by physical material and equipment. To
stretch this duty to include `people problems' would place an intolerable
burden on management. Taken to its logical conclusion, the hospital
asserted, such a course would render the Human Rights Code nearly
superfluous, as all forms of employment-related discrimination could be
dealt with under the OHSA.
The Complainant: Room for all Health Hazards Under the OHSA
Au argued that the OHSA is a remedial statute that deserves a broad
interpretation, as its purpose is to protect the fundamental integrity of
persons. Health and safety concerns evolve, and the mere fact that a
particular hazard went unmentioned should not be assumed to mean that the
legislature intended to exclude it from the scope of the Act. There could be
no doubt, Au maintained, that sexual harassment is a health hazard.
The Board: A Broad Act, an Evolving Law, an Arguable Case
A majority of the Board dismissed the employer's motion to deny Au a
hearing. The Board noted that the rule allowing it to dismiss a complaint
without a hearing was designed to terminate pointless or vexatious
litigation, not to control novel or arguable but weak cases.
The Board explained that its decision that Au had an arguable case that the
OHSA encompassed sexual harassment was supported by the broad nature of much
of the Act:
"Our conclusion that there is an arguable case that sexual harassment is
covered by the OHSA rests on the fact that the OHSA consists of very general
provisions, as well as the more specific ones referred to by employer
counsel, which do arguably focus more on inanimate objects than people. The
OHSA appears to have been deliberately designed to be flexible enough to
respond to a myriad of fact situations and evolving knowledge...".
The Board noted that the word "hazard" in the Act was not defined, and was
used in a variety of open-ended contexts. It disagreed with the hospital's
assertion that an employer's duty to take reasonable precautions to protect
workers had to be interpreted as being limited to dangers relating to
physical material and equipment. The law on sexual harassment as a workplace
hazard is not settled, the Board observed, pointing to the fact that various
tribunals are currently grappling with the question of whether it fits
within their areas of jurisdiction.
Finally, the Board stated that it might not even be necessary for it to
rule that sexual harassment is covered by the Act for Au's complaint of
reprisal to succeed. The wording of s. 50, the anti-retaliation provision,
may be broad enough to vindicate Au without such a ruling:
"It is arguable that there is support in the jurisprudence for the
proposition that one can be wrong about whether something is dangerous, or
be ignorant or mistaken about the correct application of the OHSA, and still
be protected from reprisals for activity with a health and safety nexus.
This too is an area of evolving law, and is not so plain and obvious as to
be dealt with as a preliminary point of law."
In ruling that Au's case was to be scheduled for hearing, the Board
stressed that it was not deciding how the Act would ultimately be
interpreted. It was deciding only that Au had an arguable case that the OHSA
applied to sexual harassment, and that the issues were sufficiently complex
to require a hearing of the evidence for their resolution.
The dissenting Board member held that the Board should have determined
without a hearing that Au's complaint was not covered by the OHSA.
In Our View
The Ontario Labour Relations Board decision is preliminary only, but raises
the possibility that the Occupational Health and Safety Act may come to be
interpreted as covering complaints of sexual harassment. Moreover, in the
case of allegations of reprisal, it may not even be necessary for the Board
to rule that sexual harassment is a workplace hazard under the Act for it to
find in a complainant's favour. It may be sufficient that the complainant
suffered retaliation for activities, such as reporting sexual harassment,
that the Board determines have some form of connection to health and safety.
The employer has filed for judicial review of the Board's preliminary
decision. We will keep readers informed of future developments in this case,
both in the courts and at the Board. (For a description of more recent developments, see "Ontario Labour Relations Board can hear novel sexual harassment case" on our What's New page and "Au health and safety complaint dismissed" on our Publications page; see also "Less government involvement, more flexibility urged for Ontario's health and safety system" on our Publications page).
For more information on this subject, please contact Carole Piette (613) 563-7660, Extension 227.
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