Lynn Harnden, "Employment Law - Human Rights Issues in the Workplace", February 22, 1996

This paper reviews three developing options for employees complaining of human rights violations in the workplace: procedures under health and safety legislation, access to workers' compensation benefits and recourse available under the Canadian Charter of Rights and Freedoms.

The writer discusses two recent health and safety decisions of the Ontario Labour Relations Board where employees complained of various forms of harassment. Noting that bringing harassment cases under the ambit of health and safety legislation will present difficulties to the Board in the future, the writer nevertheless concludes that the Board is likely to find ways to surmount these problems. The fact that the Occupational Health and Safety Act is regarded as remedial legislation will be cited as a rationale for interpreting the Act broadly. As well, the writer predicts, innovative ways will be developed to administer the Act to allow it to be applied to hazardous situations arising due to workplace harassment.

Where an employee suffers medical harm from human rights violations in the workplace, there may be entitlement to workers' compensation benefits. The writer reviews several recent workers' compensation cases involving complaints of harassment, and discusses the approach tribunals take to determining whether harassment is work-related, and therefore covered by the legislation.

It will be rare that litigants will make exclusive use of the Charter to pursue human rights claims, either because the direct reach of the Charter to employers is limited to government or government agencies, or the remedy is impractical to pursue. However, the writer concludes that the Charter will continue to be significant as an adjunct to human rights tribunal or arbitration proceedings which require challenges to existing legislation in order to succeed.