Occupational health and safety legislation in most Canadian
provinces prohibits reprisal by an employer against an employee who
makes allegations of unsafe work. Workers routinely try to rely on
such reprisal provisions to attack any actions of their employers.
A recent Ontario Labour Relations Board decision, Petro v. The Beer Store (PDF),
confirms that workers cannot. Reprisal complaints must relate to
health and safety matters. They cannot relate to failures to follow
corporate reporting procedures or to threats of discipline for
refusal to follow directions regarding workplace reporting
The worker, an employee of The Beer Store, was concerned about
risk to her safety because of threatening conduct by a customer who
frequented the location where she was employed. The worker felt
that the response from management to her concerns was inadequate in
There were two reprisal allegations. The first was that when the
worker contacted the President of The Beer Store about a violation
of the OHSA, she was disciplined and warned by the Manager of
Employee Relations that her employment would be terminated if she
contacted him again. This was confirmed by a letter of discipline.
The second allegation was that the worker had been suspended for
two days as a reprisal for having raised health and safety concerns
with the Manager of Corporate Health and Safety. The Beer Store
denied the allegations contained within the application, and
requested that the application be dismissed on a preliminary basis
on several grounds.
Jurisdiction of Board on Reprisal Complaints
At issue was Section 50 of the Ontario Occupational Health
& Safety Act (the "OHSA"), the reprisal
provision. The Board indicated that Subsection 50(1) of the OHSA is
limited to adjudicating complaints that a worker has suffered
reprisals because the worker has acted in compliance with or sought
enforcement of the OHSA or its regulations. Subsection 50(1) is not
a "mechanism by which an individual can complain to the Board
about any concern regarding her treatment in the
The Board acknowledged that an individual may have serious and
legitimate concerns that arise from certain workplace events or
incidents. However, unless those concerns arise in the context of
the OHSA, the Board is unable to address those matters.
Choice of Forum for Complaints
Subsection 50(2) of the OHSA provides unionized workers with two
options to deal with reprisals. One is to have the matter dealt
with by final and binding settlement arbitration under a collective
agreement, and the second is to file a complaint with the Board. In
this case, the worker had chosen to proceed with a grievance under
her collective agreement in respect of the second reprisal
complaint, which was the two-day disciplinary suspension. The Board
said that, as a result, she had no ability to file a complaint with
the Board in respect of that discipline.
Reprisal Must be for Health and Safety Issues
The Board went further, however, and said that an application
cannot proceed on the basis of a "threat" in respect of
discipline and that there must be actual discipline. In addition,
the Board referred to previous decisions where a distinction was
made between a worker's right to seek enforcement of his or her
rights under the OHSA and a worker's refusal to follow
directions for enforcing those rights.
The Board said that discipline or a warning of discipline for
failing to follow a direction is not a reprisal under the OHSA.
Therefore a warning of discipline for refusal to follow a direction
regarding workplace reporting protocols does not constitute a
reprisal. It appears that the Board's decision turned on the
fact that the alleged reprisals by the employer related to the
worker's failure to follow proper reporting procedures, and not
in relation to the complaints themselves.
The decision confirms that complaints regarding reprisals must
relate specifically to health and safety matters, and not other
matters such as failing to follow corporate reporting procedures.
Further, threats of discipline for refusal to follow directions
regarding workplace reporting protocols will not constitute a
reprisal. Given that many jurisdictions across Canada have
similarly worded reprisal provisions, this decision may be applied
broadly throughout the country. This is good news for
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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