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HRTO settlement did not bar employment standards and OHSA complaints relating to time period after settlement

The Ontario Labour Relations Board has held that Minutes of Settlement signed in the settlement of an application at the Human Rights Tribunal of Ontario, barred the employee from advancing employment standards and health and safety complaints relating to the pre-settlement – but not post-settlement – period.

On March 31, 2014, the employee settled the HRTO application and gave a release of all claims “arising from my employment with” the employer.

She later filed a complaint with the Ontario Ministry of Labour under the Employment Standards Act and a reprisal complaint with the Ontario Labour Relations Board under the Occupational Health and Safety Act.

The OLRB decided that the HRTO settlement barred any complaints relating to events occurring on or before March 31, 2014, the date of the HRTO settlement. However, it did not bar any complaints relating to events after that date.

This case is a reminder to employers that a release signed by an employee may not bar legal proceedings relating to events that occurred after the release was signed. Employers should, when entering into settlements, carefully consider the wording of the release to ensure that it is broad enough to adequately protect the employer.

Zhang v University of Ottawa, 2015 CanLII 68889 (ON LRB)

HRTO settlement did not bar employment standards and OHSA complaints relating to time period after settlement

Employer ordered to reinstate labourer fired day after complaining about knee pain, safety issue

An employee has won a reinstatement order under the Occupational Health and Safety Act after the Ontario Labour Relations Board held that he was fired for raising safety issues.

The employee complained to a company representative that carrying boxes up and down stairs caused him to suffer knee pain and was dangerous because certain loads he was carrying obstructed his view.  The next day, he was fired.

The employer’s evidence at the hearing, that the employee was dismissed because he was “not himself”, was “complacent” and was “not doing what he normally would be doing” and was “entrenched in what he was doing next” did not possibly establish a basis for termination. As such, the OLRB decided that there must have been another “spark” that set off the termination process, and the only other event was the employee’s safety complaint the day before he was fired.

Importantly, the company representative who received the employee’s safety complaint did not testify at the hearing. Therefore, the OLRB accepted the employee’s evidence that he had made the safety complaint.

Interestingly, the OLRB held that the employee had never seen a “final written warning” that the employer said they gave to him the day before his termination.  The final written warning actually hurt the employer’s case because it demonstrated that the employer believed, before the employee made the safety complaint, that a warning – not termination – was appropriate discipline.  As such, it must have been the safety complaint that led to termination.

The OLRB ordered the employer to reinstate the employee and compensate him for his lost wages from his dismissal to his reinstatement date.

Le v Safecross First Aid Limited, 2015 CanLII 72242 (ON LRB)


Employer ordered to reinstate labourer fired day after complaining about knee pain, safety issue

Employee required to produce his medical file to employer in accommodation grievance

After an employee’s union grieved that the employer had failed to return him to work “notwithstanding that he has provided all requested medical information”, the employee has been ordered to produce much of his medical file to the employer.

The employee suffered a non-occupational injury and was off work for approximately seven months.  The employee’s physician and the employer’s Occupational Health and Safety Services Manager then exchanged correspondence regarding his gradual return to work. The employee provided six medical notes from his physician regarding his restrictions and accommodation requirements, but refused to provide the remainder of the physician’s medical file on the employee.  For instance, one of the physician’s notes stated that the employee “has been cleared to return to work [but] due to the prolonged commute to and from work it is recommended that he re-integrate as follows: 6 hours per day for 4 weeks. He will be re-assessed in 3 weeks to address his medical condition.”

The arbitrator stated that employees and unions should not be ordered to produce medical documentation unless there is a clear nexus between that documentation and the genuine factual matters in dispute in the grievance.

In this case, the union would rely on the six medical notes in support of its position that the employer should have accepted those notes on their face when constructing a return to work plan for the employee.  The arbitrator said that because the union has placed those notes before the employer, the union has:

“opened the door to the proper admission of all of the documentation that the author of the medical reports relied upon in arriving at the conclusions stated in those reports, and any other documentation in the Grievor’s medical file arguably related thereto.  This may include information evidencing the physician’s knowledge of the physical demands of the Grievor’s job, records of meetings with the Grievor (including what the Grievor is reported to have said to his physician on the matter), clinical notes of physical examinations, testing and other assessments the physician may have conducted in coming to the specific conclusions or recommendations reflected by the medial notes presented to the Employer.  Such documentation, to the extent it may exist, does not expose the Grievor to an unreasonable intrusion into his private medical condition that is outside of the scope of the matters placed directly in issue by the Grievor’s own submission of his doctor’s medical notes, and thus the Employer’s production request is not a “fishing expedition” as suggested by the Union.”

As such, the employee was required to provide the employer with all “arguably relevant” medical documents in his doctor’s file, which the arbitrator restricted to those “clinical notes, records of examinations, tests, descriptions by the Grievor, and the like, forming the basis of [the physician’s] conclusions and/or recommendations in the six medical notes” that the employee voluntarily provided to the employer.

Dufferin Concrete v Teamsters Local Union Local 230, 2015 CanLII 68945 (ON LA)


Employee required to produce his medical file to employer in accommodation grievance

When public perception and the law differ: man fired for heckling TV reporter at soccer game is rehired after arbitration process

Just because members of the public call for the firing of an employee for yelling sexual taunts at a TV reporter at a sports match, does not mean that the firing is legally justified, a recent case illustrates.

A hydro employee fired in May for hurling obscenities at at TV reporter has been rehired, according to a Canadian Press story.

The employee, an assistant network management engineer with Hydro One, was fired in connection with the incident at a Toronto FC game.  A media firestorm ensured, with many Internet commentators and others calling for his firing.  Hydro One did dismiss him, citing violations of its employee code of conduct.

It is not clear whether an arbitrator ordered Hydro One to reinstate the employee, or whether Hydro One did so as part of a settlement.

The case raises the thorny issue of when employees can be disciplined or fired for off-duty conduct.  At the very least, the employee’s rehiring shows that what may seem obvious to members of the public – that vulgar, offensive and/or harassing off-duty conduct justifies firing – may not always be legally correct.

The Canadian Press story, reported on The Globe and Mail Website, can be found here.

When public perception and the law differ: man fired for heckling TV reporter at soccer game is rehired after arbitration process

OHSA duties did not require employer to issue public response to “smear campaign” against non-racialized jail employees: adjudicator

An adjudicator has held that the Occupational Health and Safety Act‘s “general duty” clause did not require an employer to issue a public response to a “smear campaign” by one employee and his lawyer against non-racialized employees of a jail which caused them emotional stress.

The employee (a correctional officer) and his lawyer made public statements that were reported by the media.  Among the lawyer’s statements was the following, as quoted on a website and in a newspaper article:

“There is a public interest in rooting white supremacists out of a jail,” Falconer said. “Keep in mind that in addition to being in a position to harass their fellow racialized officers, these white supremacist officers are in charge of inmates, often inmates that are black.”

The statements by the employee and his lawyer were in relation to an application that the employee had commenced against the Ministry of Community Safety and Correctional Services and his union at the Human Rights Tribunal of Ontario.  The union claimed that the statements “fanned racial tension” in the workplace which had abated considerably in the past few years.

The adjudicator held that the reasonable inference to be drawn from the quoted statements was that some non-racialized correctional officers were responsible for the racist hate letters sent anonymously from 2005 onwards to mostly racialized correctional officers at the jail.

The union filed a grievance against the employer’s failure to make a public statement against the comments.  The adjudicator found that the lawyer’s statements disparaged non-racialized correctional officers because they would be associated in the public’s mind as “white supremacists”.  Some of those employees suffered emotional stress as a result, and certain of them were subjected to contempt and abuse inside and outside the jail.  They claimed that this was a health and safety issue, requiring a response from the employer.

The union’s grievance claimed that, among other things, the Occupational Health and Safety Act‘s “general duty” on employers in section 25(2)(h) to take every precaution reasonable in the circumstances for the protection of workers, required the employer to issue a public response to the statements from the worker and his lawyer, given the health and safety issues – including stress – suffered by employees as a result.  Effectively, the union’s argument was that the employer’s duties under the OHSA required it to publicly support the non-racialized employees in order to reduce their stress and the hostility that they suffered as a result of the lawyer’s statements.

The employer argued that it cannot have breached the OHSA because there is no evidence of “serious illness” resulting to any of the employees, and that serious illness must be something more than “tension, stress, irritation or unhappiness”.

The parties agreed that the employer’s conduct must be judged against the standard of reasonableness.  The adjudicator held that the employer had acted reasonably in not issuing a press response.  If the employer were to start issuing public statements in reaction to public comments on cases that were before tribunals, there would be significant policy consequences for the employer, as the Crown.

The adjudicator decided, though, that ideally the employer would have issued an internal statement through a joint union-management statement, but the employer’s approach – to deal with employees’ issues as they arose – was within the range of reasonable responses.

As such, the adjudicator dismissed the grievance.

Ontario Public Service Employees Union (Blacquiere et al) v Ontario (Community Safety and Correctional Services), 2015 CanLII 67994 (ON GSB)

OHSA duties did not require employer to issue public response to “smear campaign” against non-racialized jail employees: adjudicator

Post-accident remedial measures were a “small bit of common-sense engineering”, relevant evidence in finding company guilty of OHSA offences

An employer’s post-accident efforts to fix a safety issue were relevant to the issue of whether it had violated the Occupational Health and Safety Act at the time of the accident, an Alberta judge has held.

An employee died after sustaining a blunt force blow to his head while working as a “floorhand” on the floor of a drilling rig. The company was charged with two offences under the Alberta Occupational Health and Safety Act: failing to ensure the safety of the worker, and failing to eliminate an identified hazard.

Over the company’s objections, the judge permitted the prosecutor to call evidence about an interlock/warning device that the company had designed and installed after the accident that would prevent, or at least reduce the risk of, similar accidents.  The judge stated:

“The Defence also argued that public policy favoured not admitting such evidence.  In my view, at least for a strict liability regulatory offence the public policy arguments favour admission.  The whole tone of the Act is to encourage proactive safe practices designed to prevent rather than react.  This requires employers to provide wide efforts at compliance.”

The court rejected the company’s argument that post-accident evidence should not be admitted because it would discourage “innovation and repair” – that is, discourage companies from fixing safety hazards after accidents for fear that the prosecutor could argue that that fix should have been implemented before the accident.

Interestingly, the court also stated,  “In not having heard of, let alone used this safety interlock the Defendant may have fallen victim to their own size and expertise in assuming that they defined industry standards . . . It is nothing more than applying a small bit of common-sense engineering to a known problem.”  The court noted that there were “other even simpler technical solutions which would have helped avoid this situation.”  The company had led no credible evidence that the engineering solution was an “unproven innovation” or an “incomplete engineering solution” that they could not reasonably have identified before the accident.

The court considered the evidence about the post-accident fix to be relevant, admissible and important. The court found the company guilty on both charges.

R. v. Precision Drilling Canada Limited, 2015 ABPC 115 (CanLII)

Post-accident remedial measures were a “small bit of common-sense engineering”, relevant evidence in finding company guilty of OHSA offences

Sexual joke was “worse than the usual sexual humour of the workplace”: hydro employee was fired for cause

A hydro worker’s sexual harassment of a co-worker, including an offensive sexual joke, justified his dismissal, the Ontario Labour Relations Board has held.

The OLRB found that the employee was upset by the fact that his female co-worker was on the way to being in a supervisory position to him.  The employee set about trying to belittle and isolate the co-worker.  He made disparaging comments about her abilities.  Perhaps most concerning was his telling of “the bulldog joke” which contained sexual references which were both objectifying and disparaging of women.  The OLRB stated that, “This joke was qualitatively worse than the usual sexual humour of the workplace.”  It was reasonable for the female co-worker to experience this joke as being directed towards her, the only female present at the time.  The employee ought to have known that the joke would be extremely offensive to her.

The employee also made a comment about his wife that disparaged and objectified her and disparaged women in general.  In disparaging women, the employee sent the message to others that his female co-worker did not belong on the worksite.

Interestingly, the union argued that the fact that the co-worker had asked to be treated as “one of the guys” was a “mitigating factor” suggesting that the employee’s conduct was not as serious.  The OLRB disagreed, stating that the female co-worker wanted – and was entitled to – “fair opportunity, fair treatment and fair acceptance”.

The OLRB held that the employee engaged in a course of conduct of sexual harassment and bullying behaviour towards his female co-worker.  His actions could not be viewed as a series of isolated incidents.  Further, over his 3 1/2 years with the company, he had been insubordinate time and again. In conclusion, the OLRB held that the employer had just cause for immediate dismissal of the employee.

Labourers’ International Union of North America, Ontario Provincial District Council and Labourers’ International Union of North America, Local 493 v Hydro One Networks Inc., 2015 CanLII 63834 (ON LRB)


Sexual joke was “worse than the usual sexual humour of the workplace”: hydro employee was fired for cause

Doctor’s note prescribing “no overtime” was obtained due to labour tensions, not employee’s health: three-day suspension imposed

An employee who obtained a doctor’s note to justify his desire not to work overtime during a labour dispute, deserved a three-day suspension, an arbitrator has held.

After the employer announced that it would be reducing the amount of time off accrued by certain employees, employees responded in protest by dramatically reducing the amount of overtime worked.  The employer then sought and obtained an order from the British Columbia Labour Relations Board, ending the employees’ overtime ban because it was effectively an unlawful work stoppage.

The day after the employer informed employees of the scheduling that would result from the court order, the employee saw a doctor who issued a note recommending that the employee not work overtime.  The employee had a history of working a significant amount of overtime up until he obtained that doctor’s note. The employer dismissed the employee for relying on the doctor’s note to permit him to participate in an unlawful work stoppage (overtime ban).  The employer argued that the employee had, by obtaining the doctor’s note, “disingenuously sought to get around the” Labour Relations Board order.

The arbitrator decided that the employee had indeed sought to avoid working overtime due to labour relations tensions, and it was his subjective statements regarding his health that the doctor relied upon in writing the “no overtime” note.  However, he had been sincerely feeling stress at work. He had relatively long service of about fifteen years, and good performance evaluations.  As such, dismissal was excessive.  The arbitrator instead imposed a three-day suspension.

Rio Tinto Alcan v Unifor, Local 2301, 2015 CanLII 54521 (BC LA)


Doctor’s note prescribing “no overtime” was obtained due to labour tensions, not employee’s health: three-day suspension imposed

Alcoholic employee reinstated after employer’s compassionate approach put in question seriousness of previous warnings

There is an old, and somewhat cynical saying, that no good deed goes unpunished. While I personally disagree with that saying, one employer must believe it after a decision it received.

In the case, an adjudicator reinstated an alcoholic employee who was dismissed after he was found to be under the influence of alcohol at work.  The employee had previously been disciplined for alcohol consumption, lateness/absenteeism and abandoning his shift, and on one occasion had entered into a “last chance agreement”.

The employee worked for a New Brunswick government agency filling orders for supplies destined for hospitals.  His work environment of “stores” was said to be safety-sensitive.  In April 2014, two coworkers complained to a supervisor that the employee had been “drinking again”.  The supervisor asked the employee, “are you drunk?” but received no response.  The employee smelled of liquor.  He later saw the employee “drifting down the hallway”, staggering to one side.   After the employer concluded that the employee failed to provide an explanation for being under the influence of alcohol and had not taken responsibility for his conduct, the employer later terminated his employment.

The adjudicator held that the employee, as an alcoholic, suffered from a “disability” for the purposes of human rights legislation.  The adjudicator recognized that many of the employee’s coworkers had suffered anxiety and stress as the “struggled emotionally to deal with the situation they faced” due to his alcohol abuse.  The employer had been “more than patient for many years” and was “entitled to a productive and effective contribution from each of its employees each and every day” and did “not always get that” from the employee.

However, the employer was had given the employee some “leeway” in its responses to his absenteeism and drinking.  Rather than being “steadfast” in its warning of further discipline and following through on warnings, the employer showed “compassion”.  The adjudicator expressed concern that that approach created the general impression in the mind of the employee that the threat of dismissal was not serious – that is, that the employer’s compassionate approach would continue.  Effectively, the employer’s approach had led to the “shepherd boy crying ‘wolf'” phenomenon: the employee may not have believed that the employer would follow through on its warnings.

Further, there were no aggravating circumstances; in particular, there was no aggressive behaviour from the employee in the incident that led to his dismissal.  As such, the adjudicator held that the dismissal was excessive and that the employer had not yet approached the point of “undue hardship” in accommodating the employee’s alcoholism.

The adjudicator set aside the dismissal, and instead imposed a 30-day suspension followed by a leave of absence without pay for 16 months during which the employee could complete a detox/rehabilitation program. Also, his return to work would be subject to a last chance agreement to be negotiated by the parties.  If the employee did not complete the detox/rehabilitation program in 16 months, his employment would end.

Canadian Union of Public Employees, Local 1252 v Facilicorpnb, 2015 CanLII 54715 (NB LA)

Alcoholic employee reinstated after employer’s compassionate approach put in question seriousness of previous warnings

Lawyer’s harassment investigation report was not solicitor-client or litigation privileged: union entitled to a copy, says arbitrator

The mere fact that a lawyer prepared an investigation report does not make it privileged, a labour arbitrator has held, granting the union’s request for a subpoena to obtain the report.

The Durham Regional Police Association (the police union) filed a grievance alleging that the Association’s civilian members had suffered harassment. The Durham Regional Police Services Board (the employer) retained a lawyer to conduct a harassment investigation and prepare a report, which she did.  The Association requested a copy and the Board refused, claiming that the investigation report was protected by both solicitor-client privilege and anticipated-litigation privilege.

The arbitrator decided that the lawyer-investigator was retained to conduct an investigation into whether harassment occurred. She was not retained to conduct an investigation on the Board’s behalf and to assess its liability and provide legal advice.  The arbitrator noted that the lawyer-investigator was not the Board’s usual labour lawyer.  The lawyer-investigator’s retainer letter was also not a retainer for the provision of legal advice.  Importantly, the investigation was meant to be independent.  Effectively, she was acting as an independent investigator, not the Board’s labour lawyer.  As such, the investigation report was not covered by solicitor-client privilege.

With respect to anticipated-litigation privilege, the arbitrator stated that the dominant purpose for which the investigation report was prepared was not litigation.  Instead, the purpose of the report was to determine whether the harassment complaints were substantiated because the Board was committed to a harassment-free workplace.  Litigation was a mere possibility when the investigation was conducted and was not its dominant purpose.  As such, the investigation report was not protected by anticipated-litigation privilege.

The arbitrator concluded:

“There is so little evidence that the Investigation Report was prepared for the purposes of providing legal advice or in contemplation of litigation that if I were to find that it was privileged it would effectively mean that any time a solicitor is used for an independent harassment investigation an employer could claim privilege over the resulting report and related documents. That is not consistent with the jurisprudence or with good labour relations.”

This case is a reminder that employers and their counsel should carefully consider, up-front, whether they wish the investigator’s report to be independent or to be subject to privilege. If privilege is sought, the investigator’s retainer letter should clearly state that privilege is asserted, and whether both solicitor-client and anticipated-litigation privilege are claimed.  The Ontario Court of Appeal’s 2009 decision in R. v. Bruce Power Inc., 2009 ONCA 573 (CanLII) provides a good example of how privilege can be successfully asserted over a workplace investigation report.

Durham Regional Police Association v Durham Regional Police Services Board, 2015 CanLII 60920 (ON LA)


Lawyer’s harassment investigation report was not solicitor-client or litigation privileged: union entitled to a copy, says arbitrator

Misled by official, company proves “officially induced error”, beats charges

The defence of “officially induced error” is rarely used successfully, but in a recent Highway Traffic Act case, it won the day.

A company in the business of construction and snowplowing was charged under the Highway Traffic Act with driving a snowplow on a highway without a permit, after the out-of-service snowplow was driven to a garage to have some engine/exhaust problems fixed.

The company proved that it had visited an Ontario Ministry of Transportation (MTO) office counter and was told that the snowplow was exempt from the permit requirement.   The company then made inquiries of an MTO official who confirmed in an e-mail that, as the company understood it, there was a snowplow “registration exemption” under the Highway Traffic Act. The official was wrong: the exemption applied to weight requirements, not to registration (permits).

The court decided that the company had established the “officially induced error” defence that applies to regulatory charges (including occupational health and safety charges).  The company had committed an “error of law”; it had thought about the legal consequence of its actions; it had received advice from an appropriate official; the advice was reasonable; the advice was erroneous; and the company reasonably relied on the advice.

The company was thus not guilty of the offence of failing to obtain a permit for the snowplow.  This decision is a reminder that the little-used defence of “officially induced error” is alive and well. Employers charged under occupational health and safety legislation after being misled by government safety officials, should consider arguing this defence.

Durham (Regional Municipality) v. D. Crupi & Sons Ltd., 2015 ONCJ 488 (CanLII)


Misled by official, company proves “officially induced error”, beats charges

Moving company fined under smoke-free workplace legislation

As one employer learned recently, smoke-free workplace legislation has teeth.

According to a Nunavut government press release, a government safety officer, in a workplace inspection, “observed evidence of smoking in the workplace.”

The moving company was charged under the Nunavut Environmental Tobacco Smoke Work Site Regulations, made under that Territory’s Safety Act, with failing to control the exposure of workers to environmental tobacco smoke at an enclosed work site.  The company was sentenced to a fine of $2,000, plus a 15% Victim of Crime Surcharge.

The government’s press release states, “It is important that all employers provide safe work environments by prohibiting smoking in an enclosed work site, and outside the enclosed work site within a three metre radius of any entrance to or exit from the site.”

Moving company fined under smoke-free workplace legislation

Safety contractor wins appeal of $1,000 administrative penalty under OHSA

Don’t be seen to cause a traffic jam that inconveniences a government health and safety officer.  Perhaps that is the real moral of this story.

A safety contractor was providing traffic control services on the Trans-Canada Highway in Nova Scotia where a bridge was under repair.  An Occupational Health and Safety Officer with the Nova Scotia government became caught in the resulting traffic jam.  While stuck in traffic, she tried by phone to put a stop to the bridge work so the traffic could clear.

Her main stated concern was that there was inadequate warning that traffic might be slowing down.  She wrote a compliance order against the safety contractor. Three months later she issued a $1,000.00 administrative penalty for allegedly failing to ensure that traffic control staff were provided with appropriate training, facilities and equipment.

The Nova Scotia Labour Board held that “these are very vague allegations”. It decided that the mere fact that the situation occurred did not prove that the traffic control staff lacked training and resources. The health and safety officer did not appear to have a clear understanding of what training or direction the safety contractor had provided on that day.  She drew her conclusions from limited information and not from a measured review. She did not contact the company in the days after the incident to give them the opportunity to address her concerns.

The Labour Board stated:

“The submissions of the Appellant impress me that the company is expert in its field and could have addressed many of the concerns of the officer, had she made the additional effort to contact company officials in the days following the incident.”

In the end, there was not a proper factual basis to support the Administrative Penalty, which was set aside.

Safety First Contracting (1995) Limited (Re), 2015 NSLB 148 (CanLII)

Safety contractor wins appeal of $1,000 administrative penalty under OHSA

Business owner facing criminal and provincial charges in workplace death

Both the RCMP and provincial health and safety officials have laid charges against an owner of a body shop in Dartmouth, Nova Scotia after a worker died.

The worker was killed when the vehicle he was working on caught fire.  The RCMP report that police collaborated with investigators from the Nova Scotia Department of Labour and Advanced Education and the Nova Scotia Public Prosecution Service.

Elie Phillip Hoyeck, the body shop owner, is charged with one count of Criminal Negligence Causing Death under the “Bill C-45” provisions of the Criminal Code.

He is also facing 12 charges under the Nova Scotia Occupational Health and Safety Act including failure to comply with the requirements of the Canadian Standards Association (CSA) standard, “Safety in Welding, Cutting and Allied Processes”; failure to ensure that a welding or allied process is performed by a designated competent person; failure to ensure that the person operating the equipment has inspected the surrounding area to ensure adequate precautions have been taken to remove all hazardous material or processes that produce combustible, flammable or explosive material, dust, gas or vapour, and to prevent fire or explosion; and failure to ensure that no person performs a welding or allied process on a container, pipe, valve or fitting that holds or may have held an explosive, flammable or otherwise hazardous material, and that it is performed in accordance with a written work procedure.

The case is a reminder that serious workplace accidents – particularly fatalities – can lead to both criminal and provincial charges against persons in authority over workers or workplaces.

The RCMP’s press release can be found here.


Business owner facing criminal and provincial charges in workplace death

OLRB orders employer to reinstate apartment building superintendent allegedly fired for reporting workplace violence

The Ontario Labour Relations Board has ordered an employer to reinstate an apartment building “office administrative superintendent” who alleged that she was fired after reporting that her husband, the maintenance superintendent at the same building, threatened their daughter and was about to hit her.  They resided in an apartment in the building.

Importantly, the employer did not file a Response to the employee’s OLRB Application, meaning that the OLRB’s decision was of a “default nature”.

The employee alleged that after she reported the incident of workplace violence, the property manager told her to “calm down” and not to call the police, and that she should “let it go” and forgive her husband.  The employee moved to a temporary shelter and reported the matter to police.  Her husband was arrested by police and was also fired by her employer.

The employee stated that she was without income, and would be required to change her daughter’s school.  The OLRB found that on the basis of the facts pleaded by the employee, she was “in a highly vulnerable and precarious position”.  Her allegations provided an “arguable case” that she was fired for asking the employer to comply with its workplace violence obligations under the Occupational Health and Safety Act; she had shown that she would suffer harm and real prejudice if she were not reinstated; and the employer had not provided any evidence that it would suffer prejudice or harm if she were reinstated pending the final determination of her safety-reprisal complaint.

As such, the OLRB decided to order the employer to reinstate the employee to her job “forthwith on the same terms and conditions” (which would, it appears, also require the employer to give her back her apartment in the building) pending the final outcome of the employee’s safety-reprisal case.  If nothing, else, this case demonstrates why employers should file a Response to all safety-reprisal claims made against them.

A.A. v B.B. Ltd., 2015 CanLII 53737 (ON LRB)


OLRB orders employer to reinstate apartment building superintendent allegedly fired for reporting workplace violence

Employee properly fired for workplace violence threats, despite his mental disability: Appeal Court

An employee’s mental disability, unknown to his employer at the time of dismissal, played no role in the reason he was fired.  He was fired because he made violent threats against coworkers, the Ontario Court of Appeal has held.

Although the employer had been accommodating of the employee’s “various ‘disabilities’ he reported to them over time: his alcoholism, his thyroid and cardiac issues”, the employer was unaware of his “mental disability” and did not engage in discriminatory conduct in firing him for workplace violence. The court stated, “They fired him as they would any employee who engaged in such workplace misconduct.”

The Ontario Court of Appeal quoted the following statement of the British Columbia Court of Appeal in British Columbia (Public Service Agency) v. British Columbia Government and Services Employees’ Union, 2008 BCCA 357 (CanLII) in which an alcoholic employee was fired for theft:

“I can find no suggestion in the evidence that Mr. Gooding’s termination was arbitrary and based on preconceived ideas concerning his alcohol dependency. It was based on his conduct that rose to the level of crime. That his conduct might have been influenced by his alcohol dependency is irrelevant if that admitted dependency played no part in the employer’s decision to terminate his employment and he suffered no impact for his misconduct greater than that another employee who suffered for the same misconduct.”

Bellehumeur v. Windsor Factory Supply Ltd., 2015 ONCA 473 (CanLII)

Employee properly fired for workplace violence threats, despite his mental disability: Appeal Court

Can provincial OHSA legislation apply across borders? Ontario OHSA protects employee for safety concerns raised while temporarily in B.C., OLRB decides

The question often arises as to whether occupational health and safety legislation in an employee’s home province protects him or her when temporarily working in another province.  According to one recent Ontario Labour Relations Board decision, in some cases the answer can be “yes”.

The employee was hired in Ontario, where he lived, in September 2013.  During his first year of employment, he worked for the employer in both British Columbia and Ontario.  In February 2015, he was temporarily assigned to work in B.C. for about three weeks as a Warehouse Supervisor. While there, he raised a number of safety complaints relating to forklifts (which he said were operated by untrained employees at high speeds), the lack of first aid kits, obstruction of emergency exits, black ice and other hazardous conditions.  The employee said that his efforts to have his concerns dealt with were unsuccessful.

Shortly after returning to Ontario, the company terminated his employment.  The employee then filed a reprisal complaint under the Ontario Occupational Health and Safety Act claiming that he was fired for seeking the enforcement of the Ontario OHSA.  The employer objected, arguing that the safety issues related to compliance with B.C. – not Ontario – safety laws, and that the Ontario OHSA protected only against retaliation for asserting violations of the Ontario OHSA.

The OLRB stated:

“However, Mr. Escudero, as an employee of the responding party permanently based in Ontario, had the right, when he was temporarily assigned by the responding party to a workplace located in Prince George, to require the responding party to ensure that every precaution reasonable in the circumstances had been taken to protect him. That right existed independently of the substance of any applicable health and safety standard established by the legislature of British Columbia.  Simply put, at all times Mr. Escudero had the right to require the responding party to satisfy the statutory obligation established by section 25(2)(h) of the [Ontario OHSA].  Mr. Escudero states that he requested of the responding party that it do so, and that his employment was terminated shortly thereafter.  Mr. Escudero claims that his loss of employment was a consequence of the request he made of the responding party to ensure that it take reasonable precautions to protect him.  If a link between the latter request and the reason for his termination from employment is established, section 50(1) of the Act provides the Board with the authority to remedy the situation.”

As such, the OLRB had authority to adjudicate the reprisal complaint under the Ontario OHSA.

Escudero v Diversified Transportation Ltd./Pacific Western Group of Companies, 2015 CanLII 50878 (ON LRB)


Can provincial OHSA legislation apply across borders? Ontario OHSA protects employee for safety concerns raised while temporarily in B.C., OLRB decides

Snowplow driver dismissed due to two accidents, not workplace violence “head-butting” complaint

A snowplow driver’s bad driving record, not his workplace violence complaint, was the reason for his dismissal, the Ontario Labour Relations Board has decided.

Vehicle safety and safe road conduct were important to the employee’s employer, a contractor.  In January 2015, the employee had a single vehicle accident while driving the snowplow, which spun around, crossed the road and landed in the ditch on the opposite side of the road.  Three weeks later he had another single vehicle accident; while he was driving the snowplow partially off the asphalt, he drove into the ditch. The two accidents cost the company more than $20,000.00.

After the second accident, the police and fire department arrived.  Shortly afterwards, three employees of the company arrived.  The employee and one of his coworkers had a verbal altercation.  The employee claimed that his coworker “head-butted him in the face”.  However, when the employee was taken to the hospital he initially reported to hospital admissions that he had hit his face on the door of the truck. A few days later, the company dismissed him.

The employee claimed that he was dismissed in retaliation for raising safety issues (the head-butt incident, which he said was workplace violence).  The OLRB dismissed the complaint, noting that the employer had investigated the incidents and had decided, in good faith, that the employee was at fault.  After the first incident, the employer gave him a “final warning”.  The OLRB was satisfied that the decision to dismiss him was based solely on the “at fault” accidents.

Fotak v Fermar Paving Ltd., 2015 CanLII 46915 (ON LRB)

Snowplow driver dismissed due to two accidents, not workplace violence “head-butting” complaint

“Discussing inappropriate personal matters at work”, aggressive conduct, gets employee fired for cause

An employee on a “last-chance” agreement was fired for cause for his “aggressive, condescending and rude” behaviour including discussing sensitive personal matters at work.

The employee had worked at the company for 28 years as a general clerk at a grocery store.  He had been fired previously and was reinstated at a different store as part of a mediated settlement.  Under the settlement, if he behaved “in an inappropriate manner in the workplace, which would attract a disciplinary response”, he would be subject to discharge.

Shortly afterwards, two teenage coworkers filed complaints about the employee, alleging harassing and bullying behaviour.  The arbitrator considered the complaints and found that the employee “is a very aggressive person and does not back away from strongly asserting his views”.  He had been aggressive, condescending and rude towards those employees.

The arbitrator then stated, “That brings us to a particularly serious allegation about Mr. Tamelin discussing inappropriate personal matters at work.”  According to one witness the employee had been “talking about his personal life with his past relationships, wives, going on about them in a very negative way, actually swearing about the, uncomfortable for me and for any customer.  Didn’t want to add into the conversation.  Also talking about the United States and his political views.”  He had used offensive terms to describe his past wife.

The arbitrator ruled that the employee had “acted very inappropriately” towards the two teenage employees.  He had not been provoked by them.  As such, the employer had cause for discipline.  Given the “last chance” clause in the settlement agreement, discharge was appropriate.

Overwaitea Food Group v United Food and Commercial Workers Union, Local 1518, 2015 CanLII 49536 (BC LA)


“Discussing inappropriate personal matters at work”, aggressive conduct, gets employee fired for cause

Arbitration board imposes 24-hour firefighter shift, despite employer’s safety concerns

An interest arbitration board has imposed a 24-hour shift for firefighters employed by the Ontario City of St. Catharines, despite the city’s strenuous objections based largely on safety concerns.

The City and firefighters’ union had resolved all terms of their collective agreement except whether there should be 24-hour shifts and one other issue.  The union wanted the 24-hour shifts and the City wished to maintain its current shift schedule (10 hour day shifts and 14 hour night shifts).

The City called an expert on sleep medicine and disorders.  The expert focused on the dangers of sleep deprivation and fatigue. His opinion was that the current “10/14” shift schedule was substantially safer than a 24-hour schedule.  The evidence, however, was that over 82% of firefighters in Ontario, from “services of all sizes”, have “adopted and/or adapted to the 24-hour shift”, and 70% of firefighters in the United States.  A number of other Ontario cities, including Toronto, used 24-hour shifts which had been “freely bargained”.

The arbitration board noted that the expert’s evidence was largely based on the experience of other professions such as medical interns, who often got very little sleep during their 24-hour shift.  In contrast, firefighters in St. Catharines had gotten uninterrupted sleep during 80% of their night shifts.  Further, the evidence suggested that it would be rare that a firefighter would not get any sleep during a 24-hour shift.  There was also no evidence of any allegations that the 24-hour shift was a cause or contributing factor in any harm occurring, “even in the litigious U.S.A.”   Further, the Ontario Fire Prevention and Protection Act permitted 24-hour shifts, suggesting that the Legislature has accepted that the 24-hour shift did not present undue health and safety risks.

In summary, the evidence did not establish that there was an unacceptable safety risk to anyone that could not be addressed if a 24-hour shift was implemented.  Given the principles of “replication and comparability”, and given the wide use of the 24-hour shift in other cities, the arbitration board ordered the parties to convene a “joint committee” to “determine the best formulation” for the implementation of a 24-hour shift for a two-year trial period.

The Corporation of the City of St. Catharines v. The Catharines Professional Fire Fighters’ Association, 2014 CanLII 93716 (ON LA)

Arbitration board imposes 24-hour firefighter shift, despite employer’s safety concerns