The Ontario Labour Relations Board has reinstated an employee
who was fired shortly after he engaged in a work refusal under the
Occupational Health and Safety Act. The decision shows
that the reprisal provisions of the OHSA do indeed have teeth.
The employee worked for an auto parts company. He had
refused to lift nine bins, claiming that the bins were overloaded
and that lifting them would endanger his health and safety. A
manager was angry about the work refusal.
Approximately one week later, the company suspended the
employee, allegedly because of his failure, approximately 3 weeks
earlier, to advise the employer that a company vehicle he had been
driving had bald tires. When he returned to work after the
suspension, he was sent home and asked to see a doctor due to a
workplace injury before the suspension. A few days later, the
employer reduced his hours without explanation, and shortly
afterwards he was told that his employment was terminated "by
The OLRB held that the timing of the suspension and termination
– shortly after the work refusal – suggested a
connection between the work refusal and the suspension and
termination. The reasons offered, before termination and
at the hearing, for the suspension and termination did not add
up. Also, the employer failed to provide any explanation as
to how, when or why the decision to suspend and dismiss the
employee was made. Finally, the suspension and
termination were severe and disproportionate to the
alleged misconduct, which were "minor
As such, the OLRB found that the suspension and
termination were a reprisal for the work refusal.
The OLRB ordered the employer to reinstate the
employee with payment of all lost wages from the date of
the suspension to the date of reinstatement.
While employees lose most reprisal cases under the OHSA that
make it all the way to a hearing, this decision confirms that where
the circumstances of the discipline or termination look suspicious
– especially if they are soon after the employee refused work
or raised a safety issue – the employee may be reinstated
with a costly back-pay order.
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