Labor & Employment Law

Is Workplace Pornography a Health and Safety Issue?

By Michael Fitzgibbon

Yes, according to a post on Andrew Scott-Howman's excellent Life at Work Blog (see Workplace porn: a health and safety issue?) in which Andrew discusses a recent New Zealand case:

On the basis of the authority?s determination, there is little doubt that Williams was exposed to material that was inappropriate in her workplace. Further, the repetition of events in a relatively short timeframe undoubtedly made the issue worse for Williams ? and led the authority to the conclusion that the employer had failed in duties owed to her.

Andrew asks a very important question "But does this meet with common sense? Would we really call porn an issue of ?safety? for employees in the office?"  I suppose, where repeated, and depending on the circumstances, it might be a safety issue.  But, more likely, it is a human rights issue.

For example, the Ontario Labour Relations Board who is charged with dealing with complaints under the Occupational Health and Safety Act has said:

The Board in numerous decisions (see, for example, Meridian Magnesium Products Ltd., [1966] OLRB Rep. Nov./Dec. 964; Toronto Hydro, [1977] OLRB Rep. Nov./Dec. 1050, and The Toronto Board of Education, [1977] OLRB Rep. May/June 541) has dealt with the issue of whether the Board should exercise its discretion to hear matters which raise issues of discrimination that could be raised before the Human Rights Commission.

In these cases, the Board defers to the Human Rights Commission as being the more appropriate forum to deal with matters of discrimination and harassment on prohibited grounds (i.e. sex). As pointed out by the Board in Armstrong v. Orenda Aerospace Corp., relying on the earlier case of The City of Scarborough:

... the applicant?s complaint appears to essentially be one of discrimination and harassment because of his race, ethnic origin, or his association with members of a particular race. In other words, the complaint appears to be primarily a human rights complaint. In such instances, the Board has found that ?where the ?pith and substance? of the complaint concerns harassment or discrimination contrary to the Human Rights Code, it is generally appropriate for the Board to exercise its discretion pursuant to subsection 50(3) of OHSA and section 96 of the Labour Relations Act, to refuse to inquire into the complaint.

The interface between OHSA and the Human Rights Code has been exhaustively addressed in the decisions referred to by the responding party and there is no need to once again engage in a detailed analysis. However, the following excerpt from the Board?s decision in The City of Scarborough, supra is a helpful summary of that jurisprudence:

However important issues of workplace discrimination, harassment or "poisoned environment" are, and however much these may affect the actual health, safety or well-being of a worker, it is apparent that the legislative treatment of these non-physical "hazards" is different from the legislative treatment of physical hazards. The Board's jurisdiction under section 50 of the Occupational Health and Safety Act must be assessed in the context of this complex legislative and adjudicative scheme. The Board's role under section 50 of the Occupational Health and Safety Act is narrow and quite specific. The Board's jurisdiction is specific to the same kind of reprisal jurisdiction it has under other statutes, the Environmental Protection Act, for example. It is no part of the Board's job in a complaint under section 50 to rectify or remedy health and safety problems, as such. Indeed, the Board does not even inquire into the existence of health and safety problems, except to the extent that it is necessary to do so in order to properly deal with a reprisal complaint. Nor is the Board in a position anything like that of the Courts which have a broad and far-ranging inherent common law jurisdiction to deal with matters which may raise complex issues of fact and law, and questions concerning the interpretation and application of different statutes. Further, it is worth noting that notwithstanding this broad inherent jurisdiction, the Courts have become more and more willing to defer to a tribunal which appears to have statutory jurisdiction over the primary issue, albeit taking into account the apparent deficiency of the administrative law forum (see, for example, Weber v. Ontario Hydro, 1995 CanLII 108 (S.C.C.), [1995] 2 S.C.R. 929 (Supreme Court of Canada)).

For the reasons given in Meridian, supra, I am satisfied that the Board's jurisdiction to deal with questions of harassment and discrimination in a complaint under section 50 of the Occupational Health and Safety Act, is at best indirect, and indeed rather remote, when compared to the jurisdiction of the Human Rights Commission and human rights Boards of Inquiry to do so in the exercise of their specific and direct jurisdiction under the Human Rights Code. This does not mean that the Board will decline to inquire into a complaint under section 50 of the Occupational Health and Safety Act merely because the factual basis asserted for the complaint includes discrimination or harassment. However, where the "pith and substance" of the complaint concerns harassment or discrimination, it is generally appropriate for the Board to dismiss a section 50 complaint in the exercise of its discretion under subsection 50(2)?

So, at least in Ontario, an argument could be advanced that the question posed in the title to this post is "no" (or at least "it depends").

Full post as published by Thoughts from a Management Lawyer on December 08, 2007 (boomark / email).