The Canada Industrial Relations Board has dismissed a
safety-reprisal complaint where the employee, representing himself,
missed deadlines and failed to respond to CIRB correspondence.
The employee filed a complaint alleging that his employer took
action against him for exercising his safety rights, contrary to
the Canada Labour Code. The employer said that the
employee's job performance was the reason for taking action
The CIRB asked both parties for more focused submissions. The
employee did not provide his submission within the time frame set
by the CIRB. The CIRB then extended that time frame after the
employee said that he had moved. The employee then failed to open
the CIRB's registered letters or keep the CIRB apprised of any
further changes in his address.
"As mentioned above, the Board is fully aware that Ms.
Reid, like many unrepresented litigants, may not be familiar with
the Code. But a complainant still has the ultimate
obligation of going through his/her own material, including
allegedly relevant documents, and drafting a complaint in
accordance with the Regulations. That obligation is not satisfied
by filing hundreds of pages of documents and implicitly asking the
Board to go through it and decide what, if anything, should form
part of a complaint."
The CIRB ultimately concluded:
"In this case, Mr. Shmig claimed in a discussion with the
IRO that he never received the Board's decision requesting more
particularized pleadings. The IRO sent him another copy of the
decision. When Mr. Shmig failed to provide the requested pleading,
he claimed in another discussion with the IRO that the emailed copy
of the decision had never reached him. Finally, after the Board
granted Mr. Shmig an extension to file the requested particulars,
Mr. Shmig failed to pick up two separate Board mailings which had
been couriered to his last known address.
Ultimately, it is not the Board's role to chase after a
party for its pleading. The Board is satisfied that it provided Mr.
Shmig with several opportunities to pursue his complaint. For
whatever reason, Mr. Shmig chose not to do so."
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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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