Where an employer fires an employee for raising safety concerns,
the employee will generally be entitled to reinstatement, the
Ontario Labour Relations Board has stated.
The case involved a restaurant employee who sent an e-mail to
the owner complaining of workplace harassment and asking for a copy
of the employer's harassment policy. In the owner's
e-mail response, he denied the harassment. He did not give her a
copy of the policy.
A few days later, the owner sent the employee an e-mail advising
that the Ministry of Labour had commenced an inspection under the
Occupational Health and Safety Act and asking her to meet
with the employer's health and safety committee. The
employee responded that she was willing to do so, and again
requested a copy of the harassment policy. The owner never
contacted her again, and did not schedule her for any more shifts
despite the employee's repeated requests to be returned to the
The employee filed a reprisal complaint under the OHSA with the
Ontario Labour Relations Board. The employer did not attend the
hearing. In the absence of an explanation by the employer,
the OLRB was satisfied that at least part of the employer's
reason for ceasing to schedule her was that she had raised health
and safety issues.
The OLRB stated that, "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 this case, the employee
did not want to go back to work at the restaurant. The OLRB
decided that, "Given the manner in which her employment ended,
I do not find that reinstatement would be a viable remedy in the
circumstances. I agree with counsel that, in the place of
reinstatement, Ms. Thompson is entitled to damages for loss of
employment." The OLRB awarded her damages of $7,437.16 for
"loss of employment and loss of wages".
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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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