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 schedule.
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".
Thompson v 580062 Ontario Inc (Slainte Irish Gastropub), 2015 CanLII 76907 (ON LRB)
For more information, visit our Occupational Health & Safety Law blog at www.occupationalhealthandsafetylaw.com
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