Summary:
A building maintenance Employee complained about unsafe work conditions.
Upon hearing the complaint, the Employer planned to fire the Employee: “Let’s start the conversation about how work is getting low – and in 2-3 weeks we will just lay him off for lack of work.”
Three weeks later, the Employee was fired.
The Ontario Labour Relations Board found that the termination was a reprisal for the Employee asserting their rights under the Ontario Occupational Health and Safety Act (OHSA).
The Labour Board awarded the Employee compensation for lost wages, loss of the value of the job, and emotional pain and suffering.
When two employees raised concerns about an unsafe working environment to his employer, the employer quickly terminated their employment claiming that the company had run out of work: William Joseph Thorogood v North 44 Property Management.
In February 2018, two building maintenance employees were ordered to clean an attic which had been contaminated by pigeons and other animals. They were concerned that they did not have the proper protective equipment and alerted their supervisor. On the day the supervisor relayed this information to Employer’s Regional Manager asking how to proceed, the Regional Manager replied:
Let’s start the conversation about how work is getting low – and in 2-3 weeks we will just lay him off for lack of work
We’ll have to deal with the backlash.
Discuss with me in 2-3 weeks
Sure enough, around one month later, the employees were let go for lack of work. The employer explained they only hired the employees in anticipation of acquiring a new building that required maintenance staff. Since they could not acquire the building, they had to let employees go.
One of the employees filed an application at the Ontario Labour Relations Board claiming that his termination was in reprisal (or retaliation) for asserting his rights under OHSA – his right to work in a safe working environment.
The Labour Board ruled in favour for the employee. The Board did not buy the Employer’s argument that the termination was solely due to business reasons – failing to acquire the new building. The evidence showed that the Employer already knew it would not acquire the new building in early February, and yet still employed and gave a raise to the employee. It was only after the employees complained did the employer quickly terminate their employment.
The Labour Board also took no issue with the fact that a Ministry of Labour (MOL) inspector did not issue any orders against the employer, as its focus was different than the Ministry of Labour.
The Labour Board stated “the timing of the termination of the applicant’s employment is suspicious,” and it was “not convinced that the decision to terminate the applicant’s employment was unrelated, at least in part, to his having exercised his rights under OHSA by raising health and safety issues and seeking compliance with OHSA.”
The Labour Board awarded a total of $4,002.70 to the employee for lost wages, value of the job lost, and emotional pain and suffering:
The lost wages consisted of 8 weeks of pay, the time period from the employee’s termination to the date of the hearing ($2,600).
The value of the lost job amounted to one month of pay per year of service ($902.70); the employee only worked for four months.
Finally, the emotional pain and suffering was because the employee claimed he suffered from stress and depression ($500).
The employee did not ask for reinstatement.
Employer Errors: Under the Occupational Health and Safety Act (OHSA), employers are not allowed to reprise or retaliate against employees who assert their rights under this Act. This often includes complaints about harassment and other unsafe working conditions. Further, the Act requires that employers must appropriately investigate complaints of harassment. Employers should ensure they have proper workplace policies in place, and be able to deal with harassment and unsafe working environment complaints.
Employee Education: One of the powerful remedies an employee can seek for reprisal complaints under OHSA is reinstatement. While it is understandable that employees who experience reprisal will not want to go back to a toxic work environment, the threat of reinstatement can often be used as a good negotiating tool for more severance. For employees who have longer service, the amount of money they could be entitled to could be much more than what was awarded in this case. Further, the longer it takes to get a hearing at the Labour Board, the more lost wages an employee could be entitled to.
Jason Wong is a Toronto employment lawyer who helps employees and employers understand their rights and interests at work. You can contact him for a free consultation at 647-242-5961 or jason@wongemploymentlaw.com.