Prepare for Dean By Getting on Top of the Reprisal Conundrum

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When news came down that Ontario was creating a panel to review the province’s OHS system, some employers worried it would result in a one-sided “raise-the-penalties” type report. In fact, however, the Dean report is very well balanced. However, there is one section that does demonstrate a pronouncedly negative slant against employers.

Recommendations 33 to 35 call on the government to provide more protection to workers against reprisals from their employers. The report suggests that workers dare not raise their safety concerns out of fear of getting fired.

Of course, such reprisals do happen. Thus, for example, OHSI’s Safety Bum of the Week column of Dec. 3 recounts the tale of the 4 Ontario firefighters fired by the Town of Adjala-Tosorontio in apparent reprisal for raising safety concerns about response procedures.

But in the real world, all employers are not bullies and reprisal cases are seldom black and white.

The Ban on Reprisals

The law bans employers from firing or engaging against other forms of retaliation against workers for raising safety concerns, serving on JHSCs or exercising any of their other OHS rights. That’s a good rule.

The problem is that a worker who engages in a protected activity may deserve to be disciplined for infractions not related to the protected activity. Thus, the worker who shows up for work drunk on Tuesday and verbally abuses her supervisor on Wednesday shouldn’t be immune from discipline simply because she happened to report an OHS offence to the Ministry of Labour on Monday.

Of course, if you do try to discipline her, the union will almost surely play the reprisal card. In an arbitration or Labour Board proceeding, the burden would fall to you to show the discipline was legitimate and not a reprisal. Here’s what you need to know to meet that burden.

The 4 Elements of a Reprisal Offence

Generally, there are 4 things the Crown must show to prove that discipline was a reprisal against a worker for exercising an OHS safety right:

1. The Worker Engaged in Protected Activity

First, the Crown must prove that the worker engaged in a form of activity protected by the ban on reprisals in the OHS law. Protected activities typically include:

  • Reporting a safety incident or concern to the government;
  • Raising such concerns internally;
  • Refusing work the worker reasonably believes to be dangerous;
  • Participating in JHSC activities or serving as a health and safety representative; and
  • Exercising other rights under the OHS laws.

2. The Company Knew about the Worker’s Activity

A company can be liable for reprisal only if it knew that the worker engaged in one or more of those protected activities. A company is considered to have knowledge if an officer, employee, contractor, subcontractor or other agent knew of the activity.

3. Company Took Adverse Action against the Worker

The law bans companies from taking or threatening adverse actions, which typically include:

  • Firing;
  • Demotion;
  • Suspension;
  • Reassignment to less favorable duties or work conditions;
  • Harassment; and
  • Any other discrimination regarding compensation, terms, conditions or privileges of employment, such as taking back the worker’s preferred parking space or meal ticket.

4. The Protected Activity Was the Cause for Discipline

The mere fact that workers who engaged in a form of protected activity were fired, demoted, etc. doesn’t prove reprisal. The Crown must show that engaging in the protected activity was the cause of the adverse action. This is usually the hardest element to prove.

Cause Shown: A lead hand at a steel plant gets into an argument with his supervisor over training a new worker. “I’m sick of your insubordination,” yells the supervisor. “Then make somebody else the lead hand and let him do the training,” shouts back the lead hand. The next day, the company refuses to give the lead hand his meal ticket; 3 days after that, it moves his office. The lead hand claims reprisal. The company argues that the actions had nothing to do with the incident. But the Board disagrees. The fact that the adverse actions took place within 4 days of the incident established an “arguable case” for a causal connection, it finds [(Re:) Ivaco Rolling Mills, [2002] O.L.R.D. No. 740].

Cause Not Shown: An Ontario factory worker smells gas. The foreman reassures him that the odor is coming from the lubricant used to clean the machines and poses no danger. The worker gets upset and curses at the foreman. Later that day, the worker requests a leave of absence. The supervisor tells him his paperwork isn’t in order and asks him to resubmit the request.  The worker becomes unruly and threatens to walk off the line. The company suspends him for 30 days. The worker claims it’s a reprisal for raising a safety concern. The Labour Board disagrees. The worker was suspended because he was insubordinate, not because he complained about the smell of gas, it rules [(Re:) Lear Corp. Canada, [2004] O.L.R.D. No. 4205].

Note: Reprisal doesn’t have to be an employer’s only motive for taking adverse action; it need only be one of the factors in the decision.

Conclusion

While many of the Dean report’s recommendations stand a good chance of adoption, lawyers express skepticism about whether the reprisal recommendations will ever see the light of day. Still, no matter how things shake out, reprisals will remain a challenge—both inside and outside Ontario.