Home Arbitration/Labour Relations Banana-related harassment grievance at Ontario Clean Water Agency proceeding to full hearing

Banana-related harassment grievance at Ontario Clean Water Agency proceeding to full hearing

by HR Law Canada

A grievance against the Ontario Clean Water Agency over a poisoned work environment is proceeding to a full hearing after the Grievance Settlement Board rejected a bid by the employer to dismiss it.

The grievance was sparked by a single act of harassment that took place in March 2022. The worker alleged his supervisor took out a banana and placed it “suggestively near the Grievor’s groin and then near his mouth,” the ruling states. It took place in the lunchroom, in front of witnesses, and he said the incident was sexual in nature.

The employee seeks full redress, including the restoration of all sick credits and the enforcement of the employer’s Harassment and Discrimination Policy.

The employer argued against the grievance on two main points: lack of a prima facie case — that is, the initial evidence was insufficient to prove a breach of the agreement — and an attempt by the Union to expand the grievance’s scope beyond its original terms.

However, the board dismissed these objections, with the adjudicator stating, “It is plain on the face of the allegation that the impugned conduct attracts the protection of the Code,” referring to protections against harassment due to sex, sexual orientation, gender identity, or expression under the Human Rights Code.

The ruling also clarified the permissible scope of the Union’s arguments, limiting them to the appropriateness of the employer’s investigation into the alleged harassment but not extending to a breach of specific articles unrelated to the grievance.

“Insofar as the article speaks to the suspension of time limits of the grievance, I agree with the Employer. The Union may not advance a freestanding breach of article without expanding the scope of the grievance,” the adjudicator said.

This case underscores the ongoing legal responsibilities employers have to address allegations of workplace harassment seriously and thoroughly, as mandated by both the Human Rights Code and the Occupational Health and Safety Act.

The Union, citing previous decisions such as Laskowska v. Marineland of Canada Inc., argued that an employer could be held liable if it knew about the harassment and failed to act. The case is set to continue on its merits at the next scheduled hearing date, where further evidence will be examined to determine the sufficiency of the employer’s response to the harassment allegations.

For more information, see Ontario Public Service Employees Union (Silaghi) v Ontario (Ontario Clean Water Agency), 2024 CanLII 29938 (ON GSB).

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