Reverse burden of proof sinks no-show employer: OLRB awards more than $25,000 for safety-reprisal

An employer that failed to attend a safety-reprisal hearing has been ordered to pay two employees damages of more than $25,000.00.

The employees filed an application with the Ontario Labour Relations Board claiming that their dismissal was a reprisal under the Occupational Health and Safety Act. The employer failed to attend the hearing.

The OLRB noted that subs. 50(5) of the OHSA places the burden of proof on the employer, in safety-reprisal cases, to show that the employer had not retaliated against the employee for raising safety concerns.  Because the employer failed to attend the hearing, it had not discharged that burden of proof, and was deemed to have accepted all of the allegations in the employees’ reprisal complaints.

One of the employees had been unemployed, after her dismissal, for 30 weeks.  She was awarded 30 weeks’ wages as damages.  The other employee was pregnant when dismissed, and was entitled to back pay for the four weeks before her Employment Insurance maternity/parental benefits began.

The OLRB also awarded both employees damages in the amount of four weeks’ wages for the “loss of employment” plus $1,500.00 each for “mental distress”.  The damages totaled $25,848.00.

This case illustrates what already appears self-evident: employers faced with safety-reprisal complaints under the OHSA must respond and participate in the hearing, or else they will be deemed to have admitted the employee’s allegations – and will be liable for damages.

Sara Dias v 2142472 Ontario Limited, 2016 CanLII 14182 (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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