An employee has won a reinstatement order under
the Occupational Health and Safety Act after
the Ontario Labour Relations Board held that he was fired for
raising safety issues.
The employee complained to a company representative that
carrying boxes up and down stairs caused him to suffer knee pain
and was dangerous because certain loads he was carrying obstructed
his view. The next day, he was fired.
The employer's evidence at the hearing, that the employee
was dismissed because he was "not himself", was
"complacent" and was "not doing what he normally
would be doing" and was "entrenched in what he was doing
next" did not possibly establish a basis for termination. As
such, the OLRB decided that there must have been another
"spark" that set off the termination process, and the
only other event was the employee's safety complaint the day
before he was fired.
Importantly, the company representative who received the
employee's safety complaint did not testify at the hearing.
Therefore, the OLRB accepted the employee's evidence that he
had made the safety complaint.
Interestingly, the OLRB held that the employee had never seen a
"final written warning" that the employer said they gave
to him the day before his termination. The final written
warning actually hurt the employer's case because it
demonstrated that the employer believed, before the employee made
the safety complaint, that a warning – not termination
– was appropriate discipline. As such, it must have
been the safety complaint that led to termination.
The OLRB ordered the employer to reinstate the employee and
compensate him for his lost wages from his dismissal to his
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On Thursday, September 22, 2016, Dentons hosted a panel discussion about the management of liabilities and risks associated with environmental crises, including potential liabilities for directors and officers and provided insight into risk and liability techniques associated with environmental crisis management.
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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