February 19, 2016

In November, I posted about the Occupational Health and Safety Act (“OHSA”) exception to the general rule that reinstatement is not a remedy available to non-unionized employees. Around the same time, the Ontario Labour Relations Board (“OLRB”), which has jurisdiction to hear complaints under the Occupational Health and Safety Act, released its decision in Thompson v. 580062 Ontario Inc. (Slainte Irish Gastropub), in which it declared:

The presumptive remedy for a reprisal in contravention of section 50 of the Act is to reinstate the discharged employee and to provide the employee with lost wages from the date of the discharge up until the date of the reinstatement subject to mitigation.

However, in that case, the employee did not want to return to work, so the Board did not order reinstatement, but instead awarded her damages of $7,437.16 for loss of employment and loss of wages.

[Tweedownload (4)t “Reinstatement ruled to be the presumptive remedy for reprisals in violation of OHSA”]

The case involved a restaurant employee who was called into the owner’s office, where the owner proceeded to yell, swear, call her crazy, and demand that she “get the f**k out.” Then, when she was in the process of leaving, the owner “grabbed her arm and pulled and pushed her toward the door.” Following this incident, the employee reported the incident to her manager, asked to be provided with the company’s policies and procedures concerning workplace violence and harassment, and reported the events to the Ministry of Labour.

Following the initial incident, the employee was removed from the schedule, and was never put back on, despite her requests to be returned to work.

Nobody appeared on behalf of the employer at the Labour Board early resolution consultation. The Board was quick to find that the employee’s actions in making the two complaints to the company, and in reporting the incident to the Ministry of Labour, were all protected activities under the OHSA, and that removing the complainant from the schedule constituted a reprisal contrary to section 50 of the Act.

Unfortunately, however, the Board relied only on the workplace violence that had occurred in “the act of grabbing Construction_workers_not_wearing_fall_protection_equipment[the employee’s] arm and pushing and pulling her” to make its finding. It did not consider whether the owner’s verbal actions also met the definition of workplace harassment – a much more complex concept than workplace violence. A more detailed analysis of whether yelling at the employee, calling her rude names, swearing at her, and ordering her to get out also amount to workplace harassment could have broadened the applicability of this decision to those situations that do not amount to physical violence.

This case confirms that reinstatement is not just a “possibility”; it is the default remedy in the event of a reprisal under the OHSA.

If you believe you have been subjected to workplace violence or harassment, or that your employer has committed a reprisal against you for attempting to enforce your rights under the Occupational Health and Safety Act, we encourage you to contact us to learn about what options are available to you to enforce your rights. If you are an employer, and would like to ensure that you have proper policies and procedures in place, and that your employees are properly trained to avoid any complaints under the Occupational Health and Safety Act, we can help you get the policies, procedures and training in place.

by Cody Yorke