Ontario worker reacted rudely towards management after coaching for policy breach
A casino worker was fired for her combative attitude towards management and not any safety concerns she raised, the Ontario Labour Relations Board has ruled.
The worker was a cashier in a parking lot booth at Fallsview Casino and Resort in Niagara Falls, Ont. She was hired in October 2022 and received a copy of the casino’s policies, including one on the use of social media. The social media policy restricted what employees could say about the casino.
About one month into the worker’s employment, on Nov. 22, a young male customer of the casino was upset that he had spent a lot of money and he didn’t think he should pay for parking. He purposely drove through a parking lot gate near the worker’s booth and damaged it.
The next day, the worker wrote a post on Facebook describing the incident and ridiculing the customer. The casino learned of the post and the worker’s supervisors were concerned that it violated the social media policy. Since the worker was a new employee, they decided that they should have a coaching meeting with her to reminder and educate her about the policies requirements and expectations regarding social media use.
A worker’s dismissal after a health and safety inspector’s visit was a reprisal, the Ontario Labour Relations Board ruled.
Coaching meeting
Two supervisors met with the worker on Nov. 23 to coach the worker. However, she initially didn’t want to attend, saying that she hadn’t stolen anything. When she arrived, she said that she hadn’t done anything wrong and there was no reason for her to be there. The supervisor tried to counsel her and give her a non-disciplinary letter about the social media policy, but the worker refused to sign the letter and left abruptly.
Following the meeting, the worker made two complaints – one to the HR department and one to the casino’s whistleblower complaint system. Both complaints said that she didn’t deserve to be “written up for telling the truth” about the “incredibly dumb and dangerous” incident and how it affected her. She claimed that she was being harassed about the incident and the counselling meeting was unethical conduct by the supervisors.
The casino’s vice-president of HR, responding to the whistleblower complaint, found that there was no harassment or unethical behaviour. She offered to speak to the worker, but the worker declined.
On Nov. 24, the worker texted the on-duty supervisors that she had left her safety vest in her locker, which she had left open. The supervisors thought that the worker was implying that she was resigning and an HR manager called the worker twice to clarify. The worker said that she was not resigning and used profanities on the second call, hanging up on the manager.
The worker also emailed a senior manager to whom her supervisors reported and accused the supervisors of making false statements. She also asked if they received any training on listening skills and she might have to start recording everything she said for her protection. She also complained that her supervisors were unable to organize her training properly.
No prior warnings for misconduct led to a conclusion that a worker’s firing after a request for holiday pay was a reprisal, according to the Ontario Labour Relations Board.
Inflammatory social media posts
The casino found other social media posts by the worker in which she was publicly critical of previous employers, using inflammatory statements. It decided that her behaviour did not align with its values and terminated her employment on Nov. 25 for misconduct such as her harsh criticism of supervisors, an unwillingness to be coached, and hanging up on a supervisor.
The casino paid the worker for four remaining shifts for which she was scheduled but did not work and reimbursed her for the registration fee she’d paid to the Alcohol and Gaming Commission of Ontario.
The worker filed an application claiming that her termination was a reprisal for her exercising her rights under the Occupational Health and Safety Act (OHSA) when she spoke up about her concerns over the parking lot incident and how unsafe she had felt. She also claimed that she was harassed and disciplined for speaking up.
The board noted that the OHSA prohibits employers from dismissing, threatening to dismiss, or discipline a worker who acts in compliance with the OHSA or its regulations. To prove a contravention of the act, three elements must be in place, said the board – the employee engaged in a protected activity under the OHSA; the employee suffered an adverse employment consequence; and the adverse consequence was because of the protected activity.
The board found that there was no doubt that the second element of the test was met – the worker’s dismissal was an adverse employment consequence.
An employer was able to prove that a probationary worker’s dismissal was due to unsuitability and not raising health and safety concerns.
No safety complaint
However, the board found that the worker was not engaged in a protected activity under the OHSA. The worker did not pursue a formal health and safety complaint and there was no evidence that the casino prevented her from doing so, said the board. While the worker complained about management harassing her, it was related to being counselled on the social media policy, and the vice-president of HR provided a reasonable response to it, the board said.
In addition, the board pointed out that the worker never alleged that her working conditions were unsafe or that she’d been put at risk.
“In my view, one cannot trigger the protection of s. 50 [of the OHSA] simply by crying ‘harassment’ when counselled by supervisors about behaviour they deem in contravention of company policy,” said the board. “While recognizing workers’ protected right to bring real harassment complaints, these circumstances do not meet the threshold to constitute seeking enforcement of the act.”
The board also found that the counselling meeting and letter were not punitive and were only attempts by management to coach the worker. They were also the result of the worker’s breach of the social media policy, not any safety complaint, said the board.
As for the worker’s termination, it was the result of the worker’s “confrontational, derisive, and combative behaviour with management,” not any protected rights under the OHSA, the board added in dismissing the worker’s application.
