When an employee is terminated in acrimonious circumstances, employers may get the sense that litigation is on the horizon (especially where the employee declares as much on their way out the door!). Given the usual delays before civil litigation is commenced, and the leisurely pace that civil litigation proceeds at, employers justifiably may not take steps to prepare for that expected litigation right away, figuring that is tomorrow’s problem (or, in this case, next year’s problem).
However, where an employee may argue that they were terminated due to raising health and safety or workplace violence/harassment concerns, they have an avenue for redress open to them under the Occupational Health and Safety Act (Ontario) (the “OHSA”) that proceeds much more quickly. What’s more, as the recent decision of the Ontario Labour Relations Board (the “Board”) in Andriana Kapsalis v. Silver Fox Pharmacy Inc., 2018 CanLII 108630(“Kapsalis”) demonstrates, the Board will be reluctant to grant extensions to the short 10-business-day deadline for the employer to file its response. Accordingly, where there is even the foggiest possibility that the employee may make a reprisal complaint under the OHSA, employers should be taking active steps to prepare themselves for litigation even before termination occurs.
Section 50 of the OHSA prohibits an employer from imposing any negative employment consequence (such as termination, suspension, discipline, intimidation or any other penalty or threat to impose such a penalty) on a worker that has engaged in one of three protected activities:
- the worker has acted in compliance with the OHSA, the regulations or an order made thereunder (i.e. by refusing unsafe work);
- the worker has sought the enforcement of the OHSA or the regulations (i.e. by filing a complaint with the Ministry of Labour, or filing a complaint under the employer’s workplace violence or harassment policies);
- the worker has given evidence in a proceeding in respect of the enforcement of the OHSA or the regulations, or an inquest under the Coroners Act (i.e. by testifying in regulatory proceedings brought against the employer).
A worker may commence arbitral proceedings under their collective agreement or bring an application to the Board to obtain a remedy which may include reinstatement, lost wages and other pecuniary losses and aggravated damages. In order find a breach of section 50(1), the Board must make a factual determination that each of the following three things have occurred:
(a) the employee has engaged in one of three protected activities listed above;
(b) the employee has suffered an adverse employment consequence; and
(c) there is a causal link between the two.
Onus on the employer to prove no reprisal
Importantly, the OHSA reverses the onus of proof – it is the employer that must prove the negative and show that it did not terminate/penalize the employee for engaging in the protected activity. Not only that, the employer must show that it did not play a part in the decision at all. “Even if the employer has what would otherwise be legitimate reasons for termination, if one factor in the decision is the applicant having exercised his rights under the OHSA, the termination will be found to be a violation of section 50 of the OHSA.”
Given this heavy burden on employers, it is imperative that they marshal their evidence effectively, by carefully documenting the incidents or work performance issues that led to the termination and clearly setting out these reasons in a termination letter, and having that evidence ready to go to defend against a section 50 application.
Limited time frame for response
Time is another factor that works against employers. The Board expects that reprisal complaints will be commenced by workers in a timely manner. Whereas civil litigation may be commenced anytime within two years without consequence, the Board has developed a general guideline that reprisal complaints should be commenced within one year, otherwise prejudice to the employer is presumed and the worker has to provide a satisfactory explanation for the delay. Aside from this guideline, employees that have been terminated and are no longer being paid naturally have an incentive to commence reprisal applications as soon as possible.
And whereas defendants in civil litigation have at least 20 days to respond to a Statement of Claim, and in almost all cases obtain an indulgence for further time to investigate and respond to the Claim, respondents on a reprisal application are under much more stringent time constraints. A respondent has only 10 business days to serve and file their response once they are served with the application. A recent decision of the Board demonstrates that it will be reluctant to grant extensions to this deadline.
In Kapsalis, the respondent employer was served on October 30, 2018 and their response was due on November 14, 2018. The employer requested an extension from the Board of a week and a half to November 23, 2018 to file its response. The Board held that, since the employer had not pointed to any special circumstances, it was only prepared to grant an extension of a week to November 21, 2018.
Employers should proactively arm themselves
Kapsalis is a further illustration of the short timelines that employers face when served with a reprisal application. In that short time period, employers have to gather documentation and speak to witnesses that were involved with the worker’s health and safety or workplace violence/harassment complaints, the background and results of any investigation into those complaints, their termination and the reasons for that termination. The employer also has to prepare their response, serve it on all other parties and file it with the Board. This is a lot of work to complete in 10 business days. It is even more difficult where some time has passed since the termination and it is more difficult to ascertain the facts due to the fading of memories, misplacing of documents and the possibility that some key players have left the organization in the intervening period.
Employers should proactively arm themselves against a reprisal complaint where an employee is terminated or is subject to another negative employment consequence in the context of, or close in time to, a health and safety complaint or a complaint under the employer’s workplace violence or harassment policy. To the extent possible, the employer should, either prior to or shortly after terminating the employee:
- interview key players that were involved with any health and safety or workplace violence/harassment complaint the employee had made, and the investigation of that complaint (and carefully document those interviews);
- interview supervisors and management regarding incidents and work performance issues that led to the termination/penalty (and, again, carefully document those interviews);
- gather and preserve any documentation supporting the termination/penalty; and
- provide the worker with a termination/penalty letter that clearly sets out the reasons for their termination/penalty.
If you have recently terminated or otherwise penalized a worker in circumstances where there may be an OHSA reprisal complaint on the horizon, and have any questions about steps you can be taking to guard yourself against that complaint, please contact one of the members of our Labour & Employment group.
By Trevor Courtis
Barton v. Commissionaires (Great Lakes), 2011 CanLII 18985 (ON LRB) at para. 20.
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