“Not the right fit”? Fired hours after MOL inspector’s visit, employee awarded $19,000 in damages

Employers who have bona fide reasons for dismissing an employee should avoid using “not the right fit”. They should also show up at Ontario Labour Relations Board hearings.

An employee who was dismissed hours after a Ministry of Labour inspector’s visit, was fired in retaliation for raising safety issues and was awarded $19,000.00 in damages.

The employee was a maintenance manager at a hotel.  In May 2014, an anonymous telephone call was made to a MOL health and safety inspector regarding floor drains backing up at the hotel as well as a “precariously hanging partition wall hanging in the ballroom”.  Around the same time, the employee had informed the hotel’s General Manager that the employee required a fall protection harness in order to work on a 25 foot high scaffold. The General Manager refused his request and ordered him to do the work without a safety harness.

The MOL inspector met with the employee and General Manager, and issued an order that required the hotel to use a suitable company to repair the partition wall as it was too dangerous for the maintenance department to repair.  Despite that, the General Manager continued to pressure the employee to climb the scaffold.

A few hours after the inspector left, the General Manager dismissed the employee. The termination letter stated that the employee was “not the right fit to our hotel property”, while the hotel’s response to the employee’s reprisal complaint at the OLRB claimed that he was “not skilled enough for the position” and that he had not been terminated “because he refused dangerous work”.

The Ontario Labour Relations Board found that the hotel’s “attempted explanation” for the employee’s dismissal was questionable, “to express it mildly”.  If the employee had not been the right fit, or was not skilled enough, then there would have been written or verbal evidence to that effect.  However, there was no evidence that the employee had any shortcomings, and in fact the General Manager had responded “Awesome” to an e-mail from the employee in which he had described some “things which I would like to accomplish in the maintenance department”.  No one had attended the OLRB hearing for the hotel.

The OLRB decided that the employee had suffered a reprisal under the Occupational Health and Safety Act: he was fired for raising safety issues.  That was a violation of the OHSA.  There was no other possible conclusion.  The OLRB awarded the employee six months’ wages, amounting to $19,000.00, and ordered the hotel to post a copy of the OLRB’s decision in the hotel’s premises so it could be read by maintenance staff.

Sean Rapke v Sylvanacre Properties Limited o/a Four Points Sheraton, 2014 CanLII 75962 (ON LRB)

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Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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