Unsafe-Truck Complaint Gets Probationary Employee Fired – and Damages for Safety-Reprisal

An Ontario employer has been ordered to pay 24 weeks’ wages to a 12-week probationary employee who was fired after complaining about numerous safety issues with a company truck he was driving which hauled steel.

The employee had complained that the truck was “kicking” and “slipping” in third and seventh gear; that the steering was loose; that the mirrors were cracked and off-angle; that there was no engine brake (“Jake Brake”); that a portion of the dashboard had been removed and that there were exposed wires; and that fuel was leaking.  He decided that the truck was unsafe to drive, and he told the employer so.

The employee said that when he refused to work, the company’s general manager became upset and started swearing, and told him that he was fired and should leave the keys in the truck.

The employee filed a safety-reprisal complaint under section 50 of the Occupational Health and Safety Act.  The Ontario Labour Relations Board decided that the employee had reasonably believed that the truck was unsafe, and had good reason to believe that it was unsafe.  The employee had taken photographs to prove it!

The OLRB also decided that the firing was motivated, at least in part, by the employee’s work refusal, particularly given that the termination took place almost immediately after the employee refused to drive the truck.

The OLRB refused to order the employer to reinstate the employee, because he had been employed there for only 12 weeks and the trust between the parties was clearly broken. Instead, the OLRB ordered the employer to pay 20 weeks’ back pay (for the period of time between the date of the termination and the date of the OLRB’s decision) plus an additional 4 weeks’ pay. This means that the 12-week employee received twice his length of service in damages.

Barber v. LP Services, 2013 CanLII 9952 (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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