False Harassment Claim Warrants Discharge

While it may be foolish for an employer to take a complaint of harassment or bullying lightly, it is equally unwise to assume that all complainants are making claims for legitimate reasons.  When an employer determines that an employee has fabricated or greatly embellished a complaint against a co-worker or supervisor for some improper purpose, the employer should seriously consider taking action against the complainant.  As a recent decision of a labour arbitrator recognizes, making false and bad faith accusations may warrant severe discipline.

In Canadian Union of Public Employees, Local 3261 v. University of Toronto, the union grieved the discharge of an employee after the employer determined that the grievor had fabricated an allegation of workplace bullying and violence against a co-worker.  The grievor claimed that he had been the victim of an escalating pattern of harassment and bullying which culminated in the co-worker threatening him in a stairwell with a knife.  Over the course of several years, the employee had frequently complained about the tradespeople who he interacted with, and claimed that his supervisor and other members of management were complicit in his being harassed.  The employer adduced evidence that the grievor had a history of making complaints against co-workers to deflect blame whenever his performance or conduct was brought into issue.  The employer conducted an investigation and became dubious of the legitimacy of the complaint.  The complainant had initially given one date for the incident and when he reported it, but then provided different information.  When he first spoke to a manager about the alleged incident, it was after an issue of his behaviour had been raised, and he seemed to suggest that it was a "little thing".  He also declined to provide any details (such as the date and location where the incident occurred), although the union provided this information weeks later when it questioned why the employer had not investigated the alleged threat.  Ultimately, the investigation team compared their notes, and the inconsistencies and discrepancies in the complainant's reporting of the incident, and concluded that he had fabricated the situation.  Although the grievor had relatively little discipline on his record, the employer decided that his falsification of a complaint of workplace violence was sufficiently egregious that he should be discharged.  After he was fired, the grievor made a claim to the WSIB, indicating yet another date for the incident and adding further details about being bumped and having a chair kicked out from under him.

After reviewing the evidence, Arbitrator Cummings agreed with the employer's decision and found that the University "came to the correct conclusion" (i.e., that the grievor made up the story in an effort to get the co-worker in trouble and deflect attention away from his own bizarre behaviour).  In the Arbitrator's view, the employee routinely offered inconsistent accounts of what had occurred or when, and sought to take breaks or adjourn the hearing whenever he was challenged on these inconsistencies, so he would have time to develop an explanation. Moreover, the grievor's failure to document and provide details of the incident was not in keeping with his past practice when complaining about co-workers or supervisory staff.  In short, the Arbitrator found that the grievor was not credible and his evidence was unreliable.

In terms of the penalty of discharge, the Arbitrator acknowledged being troubled by the way in which the grievor's co-workers had openly shunned and bullied him in the past. At least one of the grievor's co-workers had admitted to trying to exclude him from eating in the trades shop.  However, given the gap in time between the last incident of bullying and when the false accusation was laid, the Arbitrator did not consider this mistreatment to be a mitigating factor.  The grievor's failure to admit his wrongdoing, however, was a seriously aggravating factor:

The aggravating factor is Mr. Tropak’s failure to take any responsibility for his termination. Making an unfounded allegation of a threat of workplace violence is malicious. Mr. Tropak has aggravated that misconduct by lying to the employer, the union and to the arbitrator in maintaining to the end that Mr. Ford threatened him with a knife. I echo the concerns of the employer that it is hard to imagine rebuilding an employment relationship with someone who lies about such a serious matter. It is also hard to imagine requiring other employees to work with Mr. Tropak, knowing that he has made and maintained such serious, unfounded allegations about another employee.

In the result the grievance was dismissed.

It is not often that an employee will make an unfounded complaint as was the case in this decision, and evidence of the falsehood will seldom be so obvious.  However, in order to ensure that action can be taken in the event of a false complaint, it's important to be prepared:

• Make sure you're workplace harassment and/or violence policies expressly provide for sanctions for fabricated or bad faith complaints;
• Ensure investigations are conducted in a thorough manner.  The investigator should take all reasonable steps to resolve any inconsistencies in the complainant and respondent's accounts;
• Whenever possible, assign the inquiry to an investigator who will be perceived as unbiased.  In appropriate circumstances, consider retaining a third-party to conduct the investigation where there is a lot of history with the complainant, the respondent(s) or both.

By exercising a degree of due diligence, an employer can greatly improve the likelihood of being able to address false claims when they arise.

Do you need advice on conducting workplace investigations?  Need an experienced investigator?  Contact Lance Ceaser for expert assistance.

 

Trying to Stop Shoplifter While on a Break Not "In the Course of Employment": WSIAT

In a recent decision, the Workplace Safety and Insurance Appeals Tribunal ("WSIAT" or the "Tribunal") has ruled that an employee of a supermarket can sue her employer and a third-party for injuries she incurred when she was run over in the parking lot by a suspected shoplifter.  The employee was on a break at the time that she became involved in trying to apprehend the shoplifter. In its decision, WSIAT determined that neither the employee nor the personal defendant (the grocery manager) were "in the course of employment" when the employee was injured, and that she was not therefore precluded from pursuing a civil claim.

In Guizzo v. Metro Ontario Inc., the Tribunal initially focused on whether it could be said that the grocery manager (Mr. Hughes, a defendant in the action by cross-claim) was in the course of employment, taking into consideration the factors of time, place and activity. At the point when Mr. Hughes pursued the suspected shoplifter, he had completed his shift.  The pursuit led to a shared parking lot that was not part of the employer's premises, and the employer had a violence prevention policy that prohibited employees from trying to apprehend thieves. Pursuing shoplifters was not part of the defendant's job, in any event.

Likewise, the Tribunal found that Ms. Guizzo was on a break, and the employer had an expectation that she would be available to be called back to work if needed.  She had varied from her usual routine of spending her breaks near the exit door of the store.  The employer did not expect the employee (a cashier) to attempt to stop a suspected shoplifter, and such activity was expressly prohibited by the violence prevention policy.  Ms. Guizzo's injuries were incurred in the parking lot, which was not part of the employer's premises.

Under the WSIB's policies (OPM Document No. 15-02-02, "Accident in the Course of Employment"), an accident is deemed to be work-related where "the worker was engaged in the performance of a work-related duty or in an activity reasonably incidental to (related to) the employment" (emphasis added).  However, OPM Document No. 15-03-04 specifies that "[w]orkers are not in the course of employment in public parking areas not under the employer’s control".  Moreover, where an employee is doing something that is outside their duties, or that he or she was not reasonably expected to do, this will generally take an employee outside the course of employment (OPM Document No. 15-03-08).  In addition to Board policy, the Tribunal also considered a list of factors that had been determined to be relevant in previous decisions:

1. Whether the employer derived a benefit from the activity performed by the worker.

2. Whether the worker was paid by the employer for the activity.

3. Whether the accident occurred while the worker was using equipment or materials supplied by the employer.

4. Whether the risk to which the employee was exposed was the same as the risk to which he would normally be exposed in the course of his employment.

5. Whether the activity was a result of instructions received by the employer.

6. Whether the accident occurred during the worker's normal working hours or overtime hours.

7. Whether the activity was reasonably incidental to the worker's normal employment duties.

In reviewing these factors, the Tribunal concluded that neither employee was doing something from which the employer derived a benefit, and that the time and place of the accident suggested that neither was performing their duties or an activity "reasonably incidental" to those duties when the accident occurred.

Despite the obvious connection with the workplace, the Tribunal concluded that neither Ms. Guizzo nor Mr. Hughes were "in the course of employment" when Ms. Guizzo was injured.  Because of this finding, the WSIAT concluded that section 28 of the Workplace Safety and Insurance Act did not remove Ms. Guizzo's right to sue for her injuries.

For employers, the moral of the story is that despite WSIB coverage, there will still be instances in which an employee's injuries may not be covered by the statutory regime.  Where employees are engaged in activities that take them outside the normal course of their duties (even where the employer has a policy prohibiting such behaviour), an employee may still retain a right to bring a civil action naming the employer.  It must be remembered, however, that this decision does not determine fault with respect to the employee's injuries.  It remains open to the defendants to argue contributory negligence on the part of the plaintiff, relying on the employer's violence prevention policy.

Do you have questions about what it means to be "in the course of employment"?  Need guidance on a WSIB claim or civil action by an employee?  Contact Lance Ceaser for expert advice.





 
 

Stronger Workplaces for a Stronger Economy Act reintroduced

In March, Ceaser Work Counsel reported on the second reading of the Stronger Workplaces for a Stronger Economy Act, 2013.  The legislation died on the order paper when the provincial election was called, but on July 16, 2014, the Liberal government reintroduced the bill (former Bill 146).  Here's a summary of the key amendments that (current) Bill 18 would make:

Stronger Workplaces for a Stronger Economy Act, 2014 (Bill 18)

The Stronger Workplaces for a Stronger Economy Act, 2014 (Bill 18) would make substantial changes to a number of employment-related statutes.

·         The Act extends protection to live-in caregivers under the Employment Protection for Foreign Nationals Act.

 

·         It extends the definition of “worker” under the Occupational Health and Safety Act (the “OHSA”) to include those who perform work for no pay, such as ‘unpaid interns’.  All of the protections afforded by the OHSA, including the right to refuse unsafe work, now apply to unpaid workers.

·         The Act reduces the “open period” under the Labour Relations Act, permitting decertification applications or union “raids” to occur within only the final two (2) months of construction industry collective agreements (instead of the current 3- month window). 

·         The Workplace Safety and Insurance Act (the “WSIA”) would be amended to attribute the costs of workplace injuries to temporary agency workers to the “client” employer, rather than the agency.  Lost wages for temporary agency workers would be assessed on the basis of their income earned from the agency.

Most significant, however, are the changes the legislation would make to the Employment Standards Act (the “ESA”). 

First, it would extend the time limit for recovery of unpaid wages to two (2) years, instead of the current 6-month limit.  The cap on recovery of wages of $10,000 would be eliminated, meaning that employers could be liable to the full amount of unpaid wages over a 2-year period.

Second, the amendments would create new responsibilities for temporary help agencies and the employers who utilize their services.  Agencies will now be responsible for tracking and maintaining records of all hours worked by agency workers for a period of three (3) years.  More importantly, the revisions to the ESA introduce “joint and several liability” for both the agency and the client employer with respect to the payment of wages.  This means that if the agency does not satisfy a claim for wages filed by a temporary worker, the client employer may be held responsible for any shortfall.

Third, the ESA is amended to create informational obligations for employers and the concept of the “self-audit”.  Employers would be required to provide all employees with a poster prepared by the Ministry of Labour setting out employee entitlements under the Act.  Employment Standards Officers (“ESOs”) are also now empowered to order an employer to conduct a self-audit of its records in order to determine whether it is compliant with the Act, and to provide the ESO with a report of its findings.  In its self-audit report, the employer must explain how it has determined that it is in compliance.

It should be observed that the amendments appear to focus on two vulnerable groups of workers:  temporary agency workers (so-called “temps”) and unpaid interns.  With respect to the former group, employers who rely on contingent labour will want to carefully review their contracts with the help agencies to ensure that the obligation to pay wages or other costs of the placement remain the responsibility of the agency.  Provisions that address responsibility for taxes and other statutory amounts will need to be reviewed and revised to ensure that the agency can be charged back for any amounts found due and owing by regulatory bodies, including any WSIB claims costs that are attributed to the “client” employer under the amendments to the WSIA.

By adding unpaid workers to the definition of “worker” in the OHSA, it appears that the Government is responding (at least in part) to claims that unpaid interns are becoming much more common and are prone to exploitation.  It may also be that the new “self-audit” mechanism in the ESA is intended to provide another enforcement tool to address those employers who inappropriately utilize unpaid interns, although the Government has not expressly called out this intention.

Do you have questions about Ontario's labour and employment statutes?  Have concerns about compliance?  Contact Lance Ceaser for assistance.

 

WSIAT Strikes Down Exclusion of Non-Traumatic Stress Claims Based on Charter Violation

In an April 29, 2014 decision, running to 79 pages long, the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) heard a constitutional challenge of subsections 13(4) and (5) of the Workplace Safety and Insurance Act.  Under those provisions, employees can only claim compensation for mental stress if it arises as “an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment”.  The claimant was a nurse who claimed that she had suffered from a mental disability following years of abusive and humiliating behaviour by a doctor at the hospital where she worked.  By virtue of the exclusionary language (and the Workplace Safety and Insurance Board’s Policy 15-03-02 (“Traumatic Mental Stress”), her claim was dismissed.  As a result, the employee brought a challenge under the Canadian Charter of Rights and Freedoms (the “Charter”) on the basis that the legislation discriminated against her, contrary to section 15, and that this limitation on her right to equal treatment could not be justified.

After an extensive review of the evidence from two experts on the causative relationship between workplace stress and mental illness, the WSIAT Panel concluded that the claimant had established that there was a moderate association between workplace stressors and forms of illness, such as depression and adjustment disorder.  Moreover, the Panel accepted that individuals with mental illness brought on by longer-term stressors (such as a pattern of workplace bullying) did experience substantive discrimination in being excluded from coverage.  While individuals with physical injuries that arose due to prolonged exposure or gradual onset were protected from income loss, individuals with mental disabilities did not receive the same treatment.  The Panel also rejected the argument on behalf of the Attorney-General that these types of claims were excluded due to the virtual impossibility of being able to establish that they were caused or significantly contributed to by workplace issues. The Panel observed that establishing a causal link between work activities and other physical ailments can be equally challenging, but that this is no reason to exclude coverage.

In short, the Panel found that the denial of equal treatment for claimants with non-traumatic stress conditions was contrary to the Charter, as it relied on or supported stereotypes of persons with mental disabilities, and that the Attorney-General had not established that it was a “reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society”.   As a result, Tribunal declining to apply subsections 13(4) and (5) of the Act, or the Traumatic Mental Stress Policy.  Given that the Panel had previously held that the claim would succeed, but for those provisions and the Policy, the Tribunal upheld the appeal and the claimant was granted entitlement to benefits.

As was argued by the Attorney-General at the hearing of this matter, there is fear that permitting WSIB claims of this nature will “open the floodgates”.  However, it is too early to tell.  It should be acknowledged that prior to 1997 these provisions were not in the Act, and it does not appear that mental stress claims threatened the financial viability of WSIB at that time.  It is also quite possible that the Government will take this matter to court on judicial review.  Even so, the courts tend to show great deference to the Board and the Tribunal due to their special expertise.  Stay tuned for any further developments …

Do you have a WSIB issue or need general advice on the Act?  Feel free to contact Lance Ceaser at Ceaser Work Counsel for cost-effective, expert guidance.