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Termination deemed reprisal for refusing unsafe work

reprisalIn the recent decision Podobnik v. Society of St. Vincent de Paul Stores (Ottawa) Inc. 2016 CanLII 65109, the Ontario Labour Relations Board (OLRB) held that the Employer had reprised against the Employee when it terminated her employment after she had exercised her rights under the Occupational Health and Safety Act (OHSA) to refuse unsafe work. The OLRB did not agree that the termination was the result of an legitimate organizational restructuring. Rather, it held that the Employee’s termination was motivated “at least in part” as a reprisal against her for exercising her rights under the OHSA in the weeks preceding her termination.

In this case, the Employee worked as the Books Supervisor of an Ottawa based St. Vincent de Paul, which is a charitable store. Part of her duties were to sort through books donated to the store. The Employee had raised numerous concerns about the safety of the basement where books were stored and elevator access to and from the basement. The Employee had participated in Ministry of Labour investigations of the facility and she had also joined the Joint Occupational Health and Safety Committee. The Employee was clearly very active in promoting the health and safety of the Employer.

The Employer received a donation of 30 boxes of books. The Employer reassigned the Employee’s usual helper and advised her that she had to sort the books by herself. The Employee refused on the basis that the work was not safe and could not be done by herself and without her usual help. The Employer responded by writing up the Employee and disciplining her for voicing her concern. The Employer also made comments along the lines that if you don’t like working here, just quit.

A month after this incident, the Employer allegedly restructured the Books department, demoted the Employee and then terminated her employment for alleged restructuring.  The Employee filed a complaint alleging a breach of section 50 of the OHSA on the basis that her termination was motivated in part because of her exercising her right to refuse to sort the 30 boxes of books on her own and also that there was a reprisal against her.

The OLRB reviewed the terms of the OHSA and concluded that the Employee had a valid right to refuse to unload the 30 boxes of books under section 43 of the OHSA which statutorily protects a workers right to refuse unsafe work.

The OLRB then held that the Employee had been reprised against contrary to section 50 on the basis that the termination of her employment was motivated “in part” on the basis that she had exercised her rights under the OHSA in the weeks preceding her termination.  The OLRB held:

Here, it is absolutely clear that on November 10, 2015, the day that Mr. Strate presented the applicant with her letter of termination, he was aware of her several attempts to exercise her rights under the Act.  In his testimony, Mr. Strate admitted: that it was “common knowledge” that the applicant was involved in OSHA”; that the applicant had spoken with the Inspector during his September visits to the enterprise; that the applicant had been instrumental in having a worker member elected to the JHSC, and shortly afterward had herself been elected as employee representative on the Committee — the lynch-pin of the joint responsibility principle which informs the Act;— and he was aware  that the applicant had refused to perform unsafe work on October 8, 2015 for which she was improperly disciplined.

Any one of these admissions would have called into doubt the ostensible reason for terminating the applicant — a restructuring of the workplace. This is especially so given that Mr. Strate admitted that the restructuring of the enterprise would actually entail an expansion of its facilities requiring the hiring of additional employees. The cumulative effect of these admissions made by Mr. Strate in the course of his testimony, leaves no doubt in my mind that in terminating Ms. Podobnik on November 10, 2015, the Society engaged in  reprisal misconduct contrary to OSHA subsection 50(1) (a). It has failed to meet the onus placed upon it under OSHA subsection 50(5) to establish that it “did not act contrary to subsection (1)”.

As a result, the OLRB awarded the Employee damages for wage loss, commission loss, benefit loss, the value of the job lost and damages for emotional pain and suffering totaling $15,062.00.

This case stands as a reminder of the power of administrative tribunals and the courts to review the facts behind a termination to determine if the termination was in fact the result of a legitimate restructuring or the result of a concerted effort on the part of the company to defeat the purposes of protective legislation.

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Simon Heath

Employment Lawyer and principal at Heath Law, Employment Lawyers
Simon Heath, BA, MIR, LLB, is the Principal of Heath Law, Employment Lawyers in Mississauga, Ontario. Simon represents both public and private-sector employers and employees (unionized and non-unionized) at all stages of the employment relationship with a focus in the areas of employment law, labour law and human rights law; these representations are made at all levels of courts and all administrative tribunals. Read more
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