Employee Who Raised Safety Concerns Cries Foul After Being Fired

Written on behalf of Arbesman Hamilton LLP

It’s often said that at work, safety is everyone’s concern. It would follow suit then, that employees should be free to report safety concerns they see in the workplace. In fact, Section 50 of Ontario’s Occupational Health and Safety Act (the “Act”) states:

50 (1) No employer or person acting on behalf of an employer shall,

(a) dismiss or threaten to dismiss a worker;

(b) discipline or suspend or threaten to discipline or suspend a worker;

(c) impose any penalty upon a worker; or

(d) intimidate or coerce a worker,

because the worker has acted in compliance with this Act or the regulations or an order made thereunder, has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act.  R.S.O. 1990, c. O.1, s. 50 (1).

But what happens when an employer acts in opposition to the law and terminates an employee who raised safety concerns? This was recently addressed in a decision from the Ontario Labour Relations Board.

The employment relationship comes to an end

The employer is a property management company which manages five residential buildings. The employee was hired as a maintenance technician on December 4, 2017. When his employment ended just under four months later he was earning an annual salary of $32,500. His responsibilities included troubleshooting and minor repairs of building systems, painting, repairing and installing cabinetry, and scrap and debris removal.

The employee was told when he was hired that the employer planned to acquire 59 more units in February and that he would be needed to perform maintenance on them. He was notified that the buildings were old and would require “tons of work.” In early February he and a colleague were asked to clean up the attic of a house that contained pigeon feces. The employee raised concerns about the safety of the work and eventually refused to perform it because there was no proper safety procedure in place. The employee also used this opportunity to mention other safety concerns he had noticed. On March 2, 2018 he provided his manager with a written list of those same concerns.

The employee’s probationary period ended after he had been working for 90 days. He had a performance evaluation with his manager which both parties agreed did not go well, with the conversation focusing on safety concerns.

In February the manager and her boss discussed the possibility of laying off employees due to a planned purchase falling through. The employee subsequently received notice that he was being terminate. While there was no written reasons provided, the employee testified his manager told him it was because there was not enough work.

Reverse onus

When an employee alleges they were terminated in a way that contravenes Section 50 of the Act, it is up to the employer to prove that is not the case. If the board finds that even one of the reasons an employee was fired is because they exercised their rights under Section 50, the employer will be seen to be in violation of the Act.

The board assessed the facts and summarized its findings as follows,

I am not satisfied that the (employee’s) termination was solely due to business reasons.  The timing of the termination of the (employee’s) employment is suspicious.  Given that the (employee) was fired shortly after he raised directly health and safety concerns, there is a heavy onus on (the employer) to explain the suspicious circumstances.  The legitimacy of the termination becomes even more doubtful when (the employer’s) stated business reason, lack of work, apparently existed for some time prior to the applicant’s articulation of health and safety concerns.  According to the employer’s evidence, it knew at the earliest by February 1, 2018, and definitely by February 14, 2018, that it wasn’t successful in gaining the additional building. In February, (the manager) was tasked with deciding which employee would be released. Moreover, the employer provided the (employee) with a raise effective March 5, 2018, confirming his successful completion of the probationary period.  On the same day, the regional manager’s internal email response on its face indicates that (another employee) would be laid off soon for lack of work, after having raised health and safety concerns.  Two days later, on March 7, 2018, the (employee) had his performance assessment, at which time he articulated several health and safety concerns.  It was only after this point that the (employee’s) employment was terminated.

The board found it could not be convinced that the decision o terminate the employee was unrelated, at least in part, to his having exercised his rights under Section 50 of the Act. The employee was awarded eight weeks pay, plus $500 in additional damages.

Employment law disputes, especially those involving wrongful dismissal, can be expensive and stressful to deal with. The exceptional employment law team at Arbesman Hamilton LLP represent both employees and employers in employment law matters and workplace disputes. We help employers draft employment contracts designed to clearly lay out each party’s rights and responsibilities. We also help employees understand if the terms of their contract have been violated or fulfilled when an dispute arises. Please call us at 416-481-5604 or contact us online to see how we can help with your employment law issues today.