Worker's psychological harassment complaint not protected under Nova Scotia OHSA
A Nova Scotia worker who claimed that psychological harassment and violence at work put her health and safety at risk has lost her case because psychological harassment and violence aren’t within the scope of the province’s occupational health and safety legislation.
Annette Harpell was employed at a store run by Lawton’s Drug Stores, a drug store chain in Atlantic Canada headquartered in Dartmouth, N.S. In October 2018, Harpell filed a complaint under the Nova Scotia Occupational Health and Safety Act and its Violence in the Workplace Regulations, alleging discriminatory action on the part of the employer.
An occupational health and safety officer investigated the complaint. Harpell told the officer that she had experienced “repeated bullying, harassment, intimidation, and psychological violence” from a senior co-worker who had a history of similar behaviour. She said she had reported to Lawton’s management multiple times, but the company hadn’t dealt with it appropriately. In addition, she said she was fired before she had the opportunity to report the harassment and bullying to the company’s joint occupational health and safety committee.
Harpell also said that when the issue hadn’t been resolved to her satisfaction one year after her initial complaint, she filed a report with the company’s ethics line. Lawton’s HR department called a meeting, but it refused Harpell’s request to have a support person present, so the meeting was cancelled. Soon after, Lawton’s terminated Harpell’s employment.
The investigating officer ordered documentation from Lawton’s, but the company challenged it. The officer then closed the investigation and Harpell appealed to the Nova Scotia Labour Board. She acknowledged that psychological harassment and bullying aren’t specifically covered in the definition of “violence” in the regulations but psychological health and safety should be included in the protection provided by the act.
Lawton’s countered that psychological harassment and bullying aren’t covered under the act and Harpell had no grounds for a complaint under the act. In addition, because Harpell didn’t take her complaint to the joint occupational health and safety committee first, she didn’t follow proper procedure under the act.
OHSA covered physical risks only
The Nova Scotia Labour Board found that the Violence in the Workplace Regulations specifically only applied to physical violence and threats of such violence. The definition of violence referred only to physical injury, physical health and physical safety. The legislature “wished a particular type of conduct to be subject to regulation” and “said so clearly” in the regulations, the board said.
As for the act, the general purpose clause indicates employers must take “every precaution that is reasonable in the circumstances to ensure the health and safety of persons at or near the workplace” but doesn’t make any reference to psychological harm or threats. Without the specific inclusion of psychological harassment in the language of the act — as in the legislation of other jurisdictions — the board couldn’t make such a broad interpretation of the act’s
protections. As a result, the board could not uphold Harpell’s complaint of harassment and “psychological violence” under the act and regulations.
“We accept that conduct such as harassment and bullying may lead to harmful consequences that have health and safety consequences, and that other provinces may have protections that do not exist in Nova Scotia,” the board said. “However, the decision to broaden the scope of protection to include psychological violence under occupational health and safety legislation is ultimately a legislative policy judgment, which is beyond the role of a statutory tribunal such as the board.”
The board also noted that the act sets out a test for proving a discriminatory action complaint. The test includes reporting it immediately to a supervisor, reporting it to the joint occupational health and safety committee if the first option doesn’t resolve the matter and then filing a complaint under the act. In this case, Harpell skipped the committee step and went right to filing a complaint under the act. This was a failure to take “reasonable steps to engage in the... process.” Had Harpell had grounds for a complaint of psychological harassment and violence under the act, it would have been undermined by her failure to comply with the proper complaint procedure, the board said in dismissing Harpell’s complaint.
For more information, see:
• Annette Harpell and Lawton’s Drug Store, 2019 NSLB 56 (N.S. Lab. Bd.).