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2018-09-08T08:28:20+00:00 September 10, 2018|Occupational Health and Safety|

Reprisal under the Occupational Health and Safety Act

The Ontario Labour Relations Board (“OLRB”) issued a decision on August 30, 2018 in William Joseph Thorogood v North 44 Property Management, 2018 CanLII 8272 in which the OLRB found that a decision to terminate the applicant contravened section 50 of the Occupational Health and Safety Act (“OHSA”) which provides:

50 (1) No employer or person acting on behalf of an employer shall,

a)     dismiss or threaten to dismiss a worker;

b)     discipline or suspend or threaten to discipline or suspend a worker;

c)     impose any penalty upon a worker; or

d)     intimidate or coerce a worker,

because the worker has acted in compliance with this Act or the regulations or an order made thereunder, has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act.  

There is a reverse onus under section 50(5) of the OHSA provides that “the burden of proof that an employer or person acting on behalf of an employer did not act contrary to subsection (1) lies upon the employer or the person acting on behalf of the employer.”

The OLRB relied on Fullerton v. Nygard International, 2008 CanLII 67281 (ON LRB), 2008 CanLII 67281 at paragraphs 29 and 30:  

29.   The combined effect of these provisions is that, for the Board to find that there was a reprisal in this matter, it must be satisfied that the applicant was engaged in the exercise of his statutory rights, and that the exercise of those rights was a motivating factor, no matter how small, for Nygard’s decision to terminate the applicant’s employment.  Even if the employer has what would otherwise be legitimate reasons for termination, if one factor in the decision is the applicant having exercised his rights under the OHSA, the termination will be found to be a violation of section 50 of the OHSA (see for example, MLG Enterprises Limited, [1994] OLRB Rep. Nov. 1550).

Though no refering to it specifically, the OLRB echoed the Supreme Court of Canada decision in Rizzo & Rizzo Shoes Ltd. (Re) 1998 CanLII 837 (SCC) where Iacobucci J. speaking for the Court stated:

Finally, with regard to the scheme of the legislation, since the ESA is a mechanism for providing minimum benefits and standards to protect the interests of employees, it can be characterized as benefits-conferring legislation. As such, according to several decisions of this Court, it ought to be interpreted in a broad and generous manner. Any doubt arising from difficulties of language should be resolved in favour of the claimant (see, e.g., Abrahams v. Attorney General of Canada, 1983 CanLII 17 (SCC), [1983] 1 S.C.R. 2, at p. 10; Hills v. Canada (Attorney General), 1988 CanLII 67 (SCC), [1988] 1 S.C.R. 513, at p. 537). It seems to me that, by limiting its analysis to the plain meaning of ss. 40 and 40a of the ESA, the Court of Appeal adopted an overly restrictive approach that is inconsistent with the scheme of the Act.

It is important to note that in these types of cases, if any part of the employers decision, for example to terminate the employee, was based on the employee’s exercise of rights under the OHSA, the entire decision will be tainted and will be found to contravene section 50. 

In these cases, as in many cases, the timing and context in which the decision is made is important.  The OLRB in Thorogood stated:

The timing of the termination of the applicant’s employment is suspicious.  Given that the applicant was fired shortly after he raised directly health and safety concerns, there is a heavy onus on [the employer] to explain the suspicious circumstances. 

The employer put forward business reasons in support of the termination, namely lack of work, which existed for some time prior to the applicant’s articulation of health and safety concerns.   Here is the context/optics:

According to the employer’s evidence, it knew at the earliest by February 1, 2018, and definitely by February 14, 2018, that it wasn’t successful in gaining the additional building. In February, Ms. Vowels was tasked with deciding which employee would be released. Moreover, the employer provided the applicant with a raise effective March 5, 2018, confirming his successful completion of the probationary period.  On the same day, the regional manager’s internal email response on its face indicates that Mr. Gardner would be laid off soon for lack of work, after having raised health and safety concerns.  Two days later, on March 7, 2018, the applicant had his performance assessment, at which time he articulated several health and safety concerns.  It was only after this point that the applicant’s employment was terminated.

The fact that the Ministry of Labour inspector who investigated the employees’ OHSA complaint issued no orders against the employer was not a defence to a reprisal complaint.  In the words of the OLRB, “statutory compliance is not the focus of the Board’s enquiry.”

In the circumstances, the OLRB found that the employer had violated section 50 of the OHSA.

In terms of remedy, the applicant was awarded lost wages for eight weeks from the termination date to the hearing date, loss of the value of the job which, in accordance with Board practice, was calculated as one month’s pay per year of service, and emotional pain and suffering.  The total monetary award was $4,002.70.