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Once is Enough: OLRB Dismisses Safety Reprisal Complaint Already Resolved by Arbitrator

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Employers sometimes despair over employees who file multiple claims over the same issue.  The Ontario Labour Relations Board has decided that, at least with respect to safety-reprisal complaints under the Occupational Health and Safety Act, employees get only one kick at the can, so to speak.

The employee had been dismissed for insubordination after he, in an insolent manner, refused to do certain work because of the physical effort involved.  The union grieved the dismissal.

The labour arbitrator dismissed the grievance.  In the course of his decision, the arbitrator found that the employee had not, at the time of his refusal, identified clearly that there was a safety issue underlying his concerns.

The employee complained to the Ontario Labour Relations Board, arguing that his dismissal was a reprisal under the Occupational Health and Safety Act for raising a safety issue.  The OLRB dismissed the reprisal complaint, stating that the employee could have – and apparently did – raise the reprisal issue before the arbitrator.  The arbitrator’s decision settled that issue, and the employee could not attempt to reargue the issue before the OLRB. The OLRB therefore held that it had no jurisdiction over the reprisal complaint.

Koscik v. Lakeridge Health Corporation, 2012 CanLII 81626 (ON LRB)