Sexual Harassment: A Health and Safety Hazard?

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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.