Reinstatement, Full Back Pay for Employee Fired after Work Refusal

The Ontario Labour Relations Board has reinstated an employee who was fired shortly after he engaged in a work refusal under the Occupational Health and Safety Act. The decision shows that the reprisal provisions of the OHSA do indeed have teeth.

The employee worked for an auto parts company. He had refused to lift nine bins, claiming that the bins were overloaded and that lifting them would endanger his health and safety.  A manager was angry about the work refusal.

Approximately one week later, the company suspended the employee, allegedly because of his failure, approximately 3 weeks earlier, to advise the employer that a company vehicle he had been driving had bald tires.  When he returned to work after the suspension, he was sent home and asked to see a doctor due to a workplace injury before the suspension.  A few days later, the employer reduced his hours without explanation, and shortly afterwards he was told that his employment was terminated “by head office”.

The OLRB held that the timing of the suspension and termination – shortly after the work refusal – suggested a connection between the work refusal and the suspension and termination.  The reasons offered, before termination and at the hearing, for the suspension and termination did not add up.  Also, the employer failed to provide any explanation as to how, when or why the decision to suspend and dismiss the employee was made.  Finally, the suspension and termination were severe and disproportionate to the alleged misconduct, which were “minor transgressions”.

As such, the OLRB found that the suspension and termination were a reprisal for the work refusal.

The OLRB ordered the employer to reinstate the employee with payment of all lost wages from the date of the suspension to the date of reinstatement.

While employees lose most reprisal cases under the OHSA that make it all the way to a hearing, this decision confirms that where the circumstances of the discipline or termination look suspicious – especially if they are soon after the employee refused work or raised a safety issue – the employee may be reinstated with a costly back-pay order.

Wilken v. 1377041 Ontario Inc. (Hotspot Auto Parts), 2012 CanLII 72730 (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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