Worker 'thought doing his job from home was punishment,' says lawyer, but OLRB disagreed
“If an employer is approached by an employee who's complaining about something in the workplace such as harassment or violence, you want to treat these things seriously. But even if someone doesn’t specifically bring a formal complaint under a harassment policy or health and safety legislation, you still want to be proactive as an employer and not just react to things.”
So says Chris Justice, a labour and employment lawyer at Samfiru Tumarkin in Toronto and Ottawa, after the Ontario Labour Relations Board (OLRB) dismissed a worker’s claim that restricted duties were a reprisal for a safety-related work refusal.
The worker was a secondary school teacher for the Dufferin Peel Catholic District School Board (DPCDSB) at an Oakville, Ont., school.
The worker was known to have a low tolerance for student misbehaviour and he perceived the school’s administration to be too soft at the expense of teachers.
On Nov. 5, the worker left the school on his way to coach the school’s football team when he saw some students with a bicycle. One of the students threw the bicycle recklessly into a bike rack, which led the worker to believe that it was stolen. He tried to take the bicycle into the school to find the owner, which angered the student, who said it was his.
Altercation with student
The student became verbally abusive and the two wrestled with the bicycle. About 25 to 30 students witnessed the altercation.
One of the vice-principals saw the incident and came out of the school. When the student told the worker to “get your f---ing hands off the bike,” the worker replied, “Or what?” The vice-principal asked the worker to release the bike and directed them to the main office. The entire incident was caught on video surveillance.
The student continued swearing and threatened to punch the worker. The worker then left for football practice and the vice-principal interviewed the student. Later, the worker revealed that he had a sprained wrist from the altercation.
The worker completed an incident report and the administration suspended the student for four days for inappropriate language and opposition to authority. They also considered that the worker had provoked the student’s behaviour by engaging when he should have let the administration deal with it.
When the worker learned of the suspension, he wasn’t pleased as he felt it was too lenient. On Nov. 11, he emailed two DPCDSB superintendents about the end of the student’s suspension the next day. He included a letter he had written about “an increase in troublesome student behaviours” and his colleagues feeling “tired, burnt out.” He complained that safety plans for students who are potentially violent weren’t disclosed to all teachers.
Work refusal over safety concerns
On Nov. 12, the student returned to school. The worker went to the main office and informed two of the vice-principals that that he wasn’t going to teach his class because he didn’t feel safe. He was asked to write down why he felt unsafe, but all he wrote was “I don’t feel safe at school.”
The principal reported the worker’s refusal to the health and safety department. The worker met with the co-chair of the joint health and safety committee, who told the principal that the worker wasn’t engaged in a proper work refusal under the Ontario Occupational Health and Safety Act (OHSA). The worker was asked what he needed to feel safe, but he refused to say.
DPCDSB administration viewed the video footage of the bicycle incident and were concerned about the worker’s conduct. The next day the worker was asked again about his safety concerns and he said he was “physically and psychologically hurt by the bicycle incident” and no one showed concern for him when he reported his wrist injury.
The worker also said that the school’s administration wasn’t concerned for the safety and wellbeing of staff and students. He said three things would make him feel safe again – a written acknowledgment that he had been disregarded in the decision-making around the suspended student, a commitment to a violent threat risk assessment (VTRA) and sharing of the safety plan regarding the suspended student, and a commitment to resolve school safety and culture issues with school board superintendents. He concluded by saying “Nothing you can do today will make me feel safe in this school today.”
The principal told the worker that he had no role in decision-making around student discipline and the worker replied that he would not resume teaching. The DPCDSB determined that it wasn’t a bona fide work refusal as the worker hadn’t provided “any legitimate rationale for his feeling unsafe” and, if he continued to refuse to work, he should be sent home for insubordination.
Reprisal complaint after safety complaint
The principal directed the worker to resume teaching his class. The worker refused, so he was sent home. Later that day, the DPCDSB informed the worker that his duties were restricted to work at home, with full pay, until further notice.
The worker went on sick leave, which later transitioned to long-term disability (LTD) benefits. He stayed on LTD until May 31, 2022. The DPCDSB advised that he was expected to return to work on June 1 and meet with the employee relations department about its investigation into the bicycle incident. The worker attended the meeting, but he didn’t return to work on June 1. His LTD benefits were extended.
On June 23, the DPCDSB imposed a one-day suspension on the worker for his conduct in the bicycle incident.
The worker filed a complaint of reprisal under the OHSA, alleging that the restriction of duties was a reprisal for his right to demand a safe workplace. He made no claim with regard to the one-day suspension.
The OLRB found that the worker did seek enforcement of the OHSA on Nov. 12, 2019, although in “a somewhat confusing, unorthodox and perhaps ill-advised fashion.” The worker should have explained the reasons for his work refusal, but the DPCDSB took no action at the time until he explained himself the next day, the OLRB said.
Health and safety concerns
The OLRB shared the school board’s sentiment that the worker didn’t feel personally endangered by workplace violence, as he showed no fear in the bicycle incident, in the aftermath, or in past incidents with students. It was more likely that he was upset with the length of the student’s suspension and felt frustrated, but the fact was that the worker was “raising health and safety issues by expressing dissatisfaction with school board policy on the limited disclosure of safety plans” and potentially violent students, the OLRB said.
The OLRB also found that the worker wanted to see evidence of the VTRA process and safety plan for the suspended student, which qualified as seeking enforcement of the OHSA.
“Every employer has an obligation under the OHSA when someone says they don't feel safe or, even in where they don't say that but there's a reasonable suspicion to think that there may be an issue, generally to make inquiries and not necessarily wait for the employee [to explain],” says Justice. “In that sense, [the DPCDSB] could have been more proactive, but you definitely want to get a sense either way on what the issues are, because how are you as the employer going to rectify it or address the complaint?”
However, the OLRB determined that the letter putting the worker on restricted duties was not a threat of discipline or suspension, or an attempt to intimidate or coerce him. It was standard process when there was a concern with a teacher’s conduct that they be placed on assigned home duties with full pay to avoid comprising an investigation.
Actions should not be perceived as punishments
The DPCDSB didn’t issue any discipline until completing the investigation in 2022 when it issued a one-day suspension – which the worker did not claim was a reprisal, the OLRB said.
“It's not like they could just close up shop that day, they had to make some kind of accommodation – at that point, you send him home with pay because you don't want to penalize him,” he says. “That's the thing with reprisal, you don't want to take an action that could even be perceived as punishment - this teacher thought that being sent home or doing his job from home was punishment, but the [OLRB] didn't think that.”
The idea of putting someone in a remote work situation on a temporary basis seems like an acceptable decision from the employer, says Justice.
“They didn't really know the full extent of the safety issue and didn't want to jeopardize anyone, and they knew the teacher wasn't going to be working that day,” adds Justice. “You don't want to cut their wages, suspend them without pay, or unnecessarily warn them, because that would go further in terms of a potential reprisal.”
The OLRB found no reprisal under the OHSA and dismissed the worker’s application.
