Employer experienced downturn in business, laid off many other employees
An Ontario worker’s permanent layoff was because of his employer’s business struggles during the pandemic and was not a reprisal for the worker’s complaint for unpaid vacation pay, the Canadian Industrial Relations Board has ruled.
Lattitude Air Ambulance is an international aeromedical solutions provider based in Hamilton, Ont. It hired the worker in September 2015 on a casual retainer basis and then promoted him to the position of part-time respiratory therapist in February 2020.
In the spring of 2020, the worker advised Lattitude that there was an issue with his vacation pay. Lattitude eventually paid him the difference in the discrepancy in December. However, the worker filed a complaint with the federal Labour Program of Employment and Social Development Canada in March 2021 under the Canada Labour Code Part III, which covers entitlements to overtime pay, vacation pay, and general holiday pay.
An inspector investigated the complaint and, in June completed a report stating that the worker had been owed vacation pay, but Lattitude had voluntarily paid the amounts owed to him already.
Dismissal was not a reprisal for an insubordinate casino worker, the Ontario Labour Relations Board ruled.
Business troubles
During this time, the global pandemic was seriously affecting Lattitude’s business. With much fewer people travelling, the company had much less work repatriating critically ill or injured clients from various locations. By the end of 2020, its revenue was down more than one-third from 2019.
Due to the downturn in business, Lattitude reduced the wages of all staff in September 2020. However, this wasn’t enough and it started reducing its staff levels in the medical department over the next several months. After laying off 14 employees on casual or retainer status, it turned to part-time medical staff.
On May 13, 2021, Lattitude laid off nine part-time medical crew employees, including the worker, as part of a restructuring. Up to that point, the worker at been scheduled to be on call for 40 shifts in 2021, but had only worked 13 shifts. It sent all the employees notifications of permanent layoff due to COVID-19.
The worker filed another complaint alleging that his permanent layoff was a retaliation for his monetary complaint with the Labour Program, pointing out that Lattitude didn’t send any communications during the pandemic that referred to payoffs or the potential loss of employment. He also argued that the respiratory therapist position continued to exist within the organization.
Lattitude maintained that the permanent layoff was part of an overall restructuring and had nothing to do with the worker’s complaint.
A worker’s dismissal following an OHS inspector’s visit was a reprisal for making a safety complaint, the Ontario Labour Relations Board ruled.
Exercising Canada Labour Code rights
The board noted that the Canada Labour Code prohibits any reprisal action - such as dismissal, layoff, or discipline – against an employee who exercises their rights under the code, such as filing a complaint for monetary entitlements, as the worker did. When a reprisal is claimed by an employee, the onus is on the employer to prove that either it did not take the alleged action or there was a legitimate reason unrelated to the employee’s complaint.
The board also noted that there was no question that the worker sought to enforce his rights under Part III of the code by filing a complaint for unpaid vacation pay. It also found that Lattitude’s permanent layoff of the worker was an action that could potentially constitute a reprisal. This left the question of whether the layoff was related to the worker’s complaint, said the board.
The board found that Lattitude had sufficient proof that the worker’s layoff was for reasons other than his complaint. It was able to show that its business dropped off significantly during the pandemic and it took various cost-cutting measures, including layoffs. The company laid off other employees in 2020 and the worker was only one of nine similar employees it laid off in May 2021, said the board.
The worker argued that Lattitude should have retained him because of his experience, seniority, and signs of improvement in the industry later in the pandemic, but the board said that its role was not to evaluate whether the layoff was the best decision – only whether or not it was related to the worker’s monetary complaint.
The board determined that the worker’s permanent layoff was for legitimate business reasons and not a reprisal for the worker seeking to enforce his Canada Labour Code rights. The worker’s complaint was dismissed. See Coelho and Lattitude Air Ambulance, Re, 2022 CIRB 1033.
