Worker already filed grievances for same issue going to arbitration
An Ontario worker’s attempt to make a reprisal claim under the Occupational Health and Safety Act has been quashed because he was already seeking a remedy for the same claim through labour arbitration.
The worker was employed with Autoliv Canada, an automotive safety supplier in Chatham-Kent, Ont.
The worker was disciplined and terminated for cause and he alleged that it was a reprisal for them trying to exercise their health and safety rights. The worker was part of a collective bargaining unit in a unionized workplace, so the union filed a total of six grievances related to the disciplinary action and termination of employment.
The six grievances were referred to arbitration and an arbitrator was appointed to hear them.
Reprisal claim under health and safety legislation
The worker also made an application to the Ontario Labour Relations Board alleging unlawful reprisal for an action protected by the Ontario Occupational Health and Safety Act. Autoliv requested that the board dismissed the application on a preliminary basis because the key allegations in it were also being addressed in the grievance procedure under the collective agreement.
Autoliv maintained that the application and the grievances related to the same issues, incidence, evidence and facts, so the worker had to decide to pursue one of the actions, not both. Otherwise, it would be an abuse of process because of duplication and the risk of inconsistent rulings, said the company.
The company also requested that, in the alternative to simply dismissing the application, the board should require the worker to make a choice as to which forum to pursue the issue.
The worker didn’t dispute that the grievances proceeding to arbitration raised the same facts and issues as his application to the board.
Duplication of action
The board noted that ss. 50(2) of the Occupational Health and Safety Act (OHSA) states that when a worker complains about an employer contravening that act, “the worker may either have the matter dealt with by final and binding settlement by arbitration under a collective agreement, if any, or file a complaint with the board…” This clearly set out two options, of which one must be chosen to avoid the same reprisal complaint being advanced in more than one forum, said the board.
The board also noted that it “has consistently held that an applicant who has elected to proceed under a collective agreement cannot proceed on substantially the same matters before the board under section 50 of the act.”
The board found that the worker had legitimate concerns about alleged reprisals by Autoliv, but he clearly chose to address them through the arbitration process under a collective agreement, which was ongoing. As a result, the worker “was precluded from seeking to litigate substantially the same matter against [Autoliv] before the board, as this would be contrary to section 50(2) of the OHSA.”
The board granted Autoliv’s preliminary motion and dismissed the worker’s application under the OHSA. See Henry James Martin v. Autoliv Canada Inc., 2023 CanLII 94411.
