WSIB, Ministry of Labour dealt with substance of harassment, reprisal allegations
An Ontario worker’s human rights application alleging discrimination and reprisal has been dismissed because he pursued employment standards and workers’ compensation actions for the same thing.
The worker was employed with Moore Packaging Corporation, a packaging company in Barrie, Ont., starting in March 2018.
In August 2019, the worker reported that his left wrist was injured from repetitive tasks at work, including feeding sheets of varying size into a feeder. According to the worker, on two different occasions he told two colleagues of his injury and both made almost identical sexually harassing comments.
The worker reported the wrist injury to the Ontario Workplace Safety and Insurance Board (WSIB) and Moore placed him on modified duties after his claim for healthcare benefits for the wrist injury was accepted. However, the injury didn’t significantly improve and the worker met with the health and safety co-ordinator and a union representative on Jan. 28, 2020. At the meeting, the worker told the co-ordinator about the sexually harassing comments by his colleagues several months earlier.
Employer investigated harassment allegations
On Jan. 31, the worker submitted a violence, harassment, and discrimination reporting form to the company describing the harassment allegations. Moore launched an internal investigation that issued a report on March 9, concluding that the harassment allegations were false and fraudulent. The report also found that the worker made the allegations in response to his displeasure with the management of his WSIB claim.
The worker also filed a claim with the WSIB for additional benefits for a psychotraumatic disability after he was diagnosed with post-traumatic stress disorder (PTSD). This was denied, as none of the conditions under the WSIB’s psychotraumatic disability policy were met – the worker’s PTSD was not related to the workplace accident and resulting wrist injury.
The same day that the report was issued, Moore terminated the worker’s employment for cause. A WSIB case manager determined that Moores did not breach its re-employment obligation following an injury because the termination was for reasons unrelated to the injury or the WSIB claim.
The worker immediately filed a complaint of workplace harassment to the provincial Ministry of Labour, which conducted a field investigation. The investigation determined that Moore thoroughly investigated the worker’s harassment complaint without bias, reached a conclusion, and shared its findings with the worker and the accused harassers. As a result, the ministry concluded that no further action was required.
Human rights complaint followed other actions
In August, the worker made a human rights complaint alleging discrimination with respect to employment because of disability, sexual harassment, and reprisal.
The Ontario Human Rights Tribunal noted that s. 45.1 of the Ontario Human Rights Code allowed it to dismiss an application if another proceeding has appropriately dealt with the substance of the application, in order to avoid the duplication of proceedings and prevent the re-litigation of issues.
The tribunal also noted that in some of its past decisions, it had determined that the “decision-making process of a WSIB case manager is a ‘proceeding’ within the meaning of s. 45.1 of the code.”
The tribunal found that the Ministry of Labour’s field investigation in 2020 and resulting report constituted another proceeding under the code, as it was an employment standards proceeding with jurisdiction to address human rights issues. Both the ministry and the WSIB had the power to decide questions of law, including human rights issues under the code, and therefore had concurrent jurisdiction to determine human rights issues, said the tribunal.
Other actions already dealt with substance of complaint
The tribunal also found that the worker’s human rights complaint related to his harassment complaint, which the Ministry of Labour also focused on it in its field investigation. As for the WSIB, it ruled that the worker was terminated for reasons unrelated to his injury or WSIB claim, which also addressed the allegations that the worker’s disability and harassment allegations were factors in his dismissal, said the tribunal in finding that both the ministry and the WSIB appropriately dealt with the substance of the worker’s human rights complaint.
The worker could have pursued his human rights application, but he chose to pursue the WSIB and employment standards claims after filing it and these proceedings were completed with their own findings. As a result, it would be unfair to the parties “to incur the time and expense of determining a human rights application, if the issues have been appropriately dealt with in another proceeding,” the tribunal said.
The worker’s human rights application was dismissed. See Findlay v. Moore Packaging Corporation, 2023 HRTO 1837.
