Has your employer terminated you for raising a concern about workplace safety or workplace harassment?
In Ontario, the Occupational Health and Safety Act (OHSA) protects workers from workplace harassment and violence. Note that the OHSA should not be confused with the Ontario Human Rights Code, which prohibits employees from discrimination.
If you have been terminated by your employer for raising a complaint about workplace harassment or violence, Ontario employment legislation may provide you with legal recourse.
What is Workplace Harassment and Workplace violence?
Under section 1(1) of the OHSA, “workplace violence” means the exercise or attempt to exercise physical force against a worker in a workplace that could cause physical injury.
The OHSA defines “workplace harassment” as “engaging in a course of vexatious comment or conduct against a worker in a workplace, including virtually through the use of information and communications technology, that is known or ought reasonably to be known to be unwelcome.” Section 1(1) also describes “workplace sexual harassment” as harassment that involves unwelcome sexual solicitation or advances by a person in a position to determine benefits to the worker.
Workplace harassment involves unwelcome words or actions that offend, embarrass, or humiliate someone. Examples of harassing behaviour could include the following:
- Offensive or intimidating comments or jokes;
- Bullying or aggressive behaviour;
- Displaying or circulating offensive pictures or materials; and
- Inappropriate staring.
Who is protected under Ontario’s workplace harassment laws?
Almost all workers, supervisors, employers, and workplaces in Ontario are covered by the OHSA. The OHSA captures most employees regardless of whether they are full-time, part-time, contract, or temporary workers.
However, the OHSA does not apply to federally regulated workplaces in Ontario such as banks and inter-provincial transportation companies, airports, telecommunication companies, or post offices. Instead, these federal workplaces have health and safety protections under the Canada Labour Code.
Must employers have a policy on workplace harassment and violence?
Under section 32.01 of the OHSA, employers must prepare a policy on workplace violence and harassment. This policy should be reviewed at least annually to ensure its effectiveness.
The policy must be written and posted in an accessible place in the workplace or be provided in a readily accessible electronic format.
Who is responsible for a safe work environment?
Both employers and workers share the responsibility for maintaining a safe work environment. Workers must report unsafe situations or harassment to a supervisor or employer, whereas supervisors and employers must take those concerns seriously and act on them.
Ultimately, employers hold the main responsibility. They must create and maintain a strong internal responsibility system for dealing with safety and harassment issues. This includes setting clear policies and responding to concerns.
What if an employer retaliates against an employee for raising a harassment complaint?
The OHSA requires employers to investigate workplace harassment complaints. Section 50 of the OHSA protects workers against reprisals, which are retaliatory acts by an employer in response to a complaint or concern under the OHSA.
Workers are protected from reprisals when they do any of the following:
- Act on their rights under the OHSA;
- Ask their employer to follow applicable health and safety laws;
- Provide information to a Ministry of Labour, Immigration, Training and Skills Development inspector or follow an inspector’s order; or
- Testify at a hearing about occupational health and safety enforcement in certain contexts.
The types of retaliatory acts that workers are protected from include employers doing any of the following:
- Terminating or threatening to terminate the worker;
- Suspending or disciplining, or threatening to suspend or discipline the worker;
- Intimidating or coercing the worker to not report a complaint; or
- Imposing any penalty on the worker.
How are employee reprisal allegations determined in Ontario?
Reprisal allegations against employers under the OHSA are often decided by the Ontario Labour Relations Board (OLRB).
In 2024, the OLRB in Michael Jung v. First Insurance Funding of Canada confirmed the three-part test to determine whether an employer committed reprisal that violated section 50 of the OHSA:
- The existence of alleged compliance with the OHSA, an attempt to enforce the OHSA, or testimony in a proceeding under the OHSA by the worker;
- An alleged reprisal by an employer; and
- A basis for drawing a reasonable inference of a nexus between (1) and (2).
In Michael Jung, the OLRB found that the first two steps of the test were met by the employee making a harassment complaint to their employer and subsequently being terminated. Regarding the third step of the test, the OLRB found that a reasonable nexus between the complaint and the reprisal exists if any part of the employer’s decision to terminate was tainted by reprisal against the employee for invoking their OHSA rights.
In 2019, the OLRB in Laurienne Violet Betty Chmielewski v. Sunbelt Rentals of Canada Inc. applied the same three-step test and found that the third step was met where the employer failed to provide evidence that the employee was terminated for other reasons alleged by the employer. For example, the employer could not provide adequate evidence of the employee’s alleged performance issues or the employee’s failure to cooperate with co-workers.
What if my employer ignores my complaint?
If your employer is not complying with the OHSA or violating their written workplace harassment policy, you can file a complaint with the Ministry of Labour. You can call the Ontario Health and Safety Contact Centre at 1-877-202-0008.
Speaking with a lawyer can also help you explore your legal options to address workplace harassment and reprisal committed by your employer.
Takeaways
Ontario workers have the right to a healthy and safe workplace. The OHSA provides many types of workers protection from workplace harassment, workplace sexual harassment, and workplace violence.
Workers cannot be punished for reporting workplace harassment or exercising their legal rights under the OHSA.If your employer does not respond appropriately to your complaint or concern, you can escalate the matter to the Ontario Ministry of Labour and seek legal advice from Emerge Law PC.
Thank you to Fotini Sioukas and Ephraim Barrera for their contribution to this article. The contents of this article are not to be construed as legal advice. Contact Emerge Law’s lawyers for legal assistance.