A laid-off worker's safety-retaliation complaint under the
Occupational Health and Safety Act has been dismissed
because it was really a complaint about management's assessment
of his performance – not about safety.
The worker complained that after management "split
supervision" of his department between two supervisors, the
supervisors were not "competent" as they did not
understand the workplace and work requirements, leading to the
worker receiving unfavorable performance reviews. He claimed that
this violated the employer's duty under the OHSA to appoint a
competent supervisor. He also said, in his safety-reprisal
complaint to the Ontario Labour Relations Board, that he had been
laid off in retaliation for raising this issue.
The OLRB noted that under the OHSA, "competence" of a
supervisor is to be considered in the context of the health and
safety purposes of the OHSA. It does not include concerns about the
expertise or experience of supervisors to give directions or
Here, the worker's complaints, which had continued for
several years before he had been laid off, were about his
frustration with management's perception of his performance and
their failure to change his job classification. His complaints were
not about safety. Therefore, he had not been retaliated against
under the OHSA and his OLRB proceeding was dismissed. The worker
later asked the OLRB to reconsider its decision, and that request
was also dismissed.
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A recent decision from the Supreme Court of British Columbia, Ly v. British Columbia (Interior Health Authority) 2017 BCSC 42, provides helpful clarification of the law on termination of probationary employees on the basis of "suitability" and sends a cautionary note about the importance of fair and objective assessments during probationary periods.
The Ontario Court of Appeal recently gave employees and employers a valuable reminder: a breach of an employment contract does not, in and of itself, constitute a constructive dismissal. Even if the breach translates into hundreds of thousands of dollars not being paid.
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