'They're a disgruntled employee who perceives they've been mistreated, but allegations have to be supported'
The Ontario Labour Relations Board has dismissed an application alleging that the termination of a probationary worker who complained about a colleague and
workplace conditions constituted a reprisal under the province’s Occupational Health and Safety Act (OHSA).
Afghan Women’s Organization Refugee and Immigration Services (AWO) is a Toronto-based organization providing settlement and integration services to new Canadian immigrants. The worker joined AWO as a part-time peer researcher on a project. On Nov. 1, 2023, AWO hired her as a full-time finance assistant on a three-month probationary period, with the worker continuing to work in her peer researcher role on the side.
A short time into the worker’s employment as a finance assistant, her supervisor became concerned that she wasn’t a good fit. During the worker’s second week of employment, she arrived at work well after her scheduled start time of 9 a.m. on three occasions. The supervisor told the worker that she needed to come into work on time to maximize the training from her co-worker, who finished work at 2 p.m. However, the worker continued to frequently arrive at the office late.
According to the supervisor, the worker also often failed to follow instructions. On one occasion, the supervisor twice explained an assignment after an initial failure to follow instructions. The supervisor received a report from another staff member that the worker had been found sleeping on the job and had taken breaks longer than the allowed 15 minutes.
By the end of the worker’s second week of employment, the supervisor felt that she wasn’t suitable for the finance assistant position. She told AWO’s executive director that she wanted to terminate the worker’s employment, but the executive director recommended that she take more time to assess the worker’s performance.
Concerns about work environment
On Nov. 22, the worker emailed her supervisor about concerns she had about the work environment. She said that windows in the office were frequently open, causing it to be chilly and uncomfortable enough to negatively affect productivity. She also said the office was frequently lit poorly, which also impacted her ability to work.
The worker also described an incident in which her co-worker asked her not to wear strong perfume. The worker agreed to wear a lighter scent, but the next day the co-worker wore a mask and held her hand in front of her face when speaking with the worker, which the worker felt was disrespectful. The worker said she was “open to accommodation in the event of genuine allergies,” but respect for individual preferences was important. The worker concluded her email emphasizing “the importance of my mental and emotional well-being to maintain productivity.”
The supervisor responded by saying she would investigate.
Around the same time, the worker came into the office of the executive director in an upset state, saying that her co-worker had said her perfume was too strong and the co-worker wasn’t being “culturally sensitive.” The worker also asked the co-worker to close the window, but the co-worker told her to use a portable heater.
The executive director spoke to the co-worker and the supervisor, with the former saying the worker’s perfume was causing her headaches.
Termination of employment
On Dec. 1, AWO terminated the worker’s employment, with the termination letter stating that she wasn’t a good fit for the finance assistant position. However, AWO wanted the worker to continue in the peer researcher role on other projects, which the worker did until March 2024.
Although the worker was probationary, it might have been advisable for AWO to be more specific about the reasons for termination in the circumstances, according to Faraz Kourangi an employment lawyer and workplace investigator at Williams HR Law in the Greater Toronto Area.
“When dismissing an employee on a without-cause basis, it's not always advisable to provide specific reasons, as doing so can sometimes create risk,” he says. “However, if the employee has raised concerns about harassment, discrimination, or related issues, providing more detailed reasons may help pre-empt claims that the dismissal was retaliatory.”
The worker filed an application claiming that her termination was a reprisal under the OHSA for her raising concerns about office conditions in her email to her supervisor. She argued that her performance was good and any errors she made were because of her co-worker’s failure to answer questions, although she acknowledged being late five times.
She also said that her co-worker subjected her to discriminatory treatment by demanding she use headphones and offering her own headset that was incompatible with the worker’s computer, leaving her “to bear the burden of accommodation alone” – although she acknowledged she didn’t have a medical condition affecting accessibility and didn’t clarify what accommodation she expected.
The worker also alleged that part of AWO’s reprisal against her involved her not being provided with the access code to the office, so she had to be admitted upon arrival.
Performance concerns
The board didn’t find the worker to be a credible witness, citing inconsistencies in her testimony, a tendency to embellish claims – such as her reference to undefined accommodation and characterizing her termination as an act of violence - and a failure to challenge key evidence from AWO witnesses such as the supervisor and the executive director.
The board found that the evidence indicated that, within the first two weeks of the worker’s employment, the supervisor had concerns regarding the worker’s performance, punctuality, and ability to follow instructions. The supervisor reported these concerns to the executive director and wanted to terminate the worker’s employment at that time, but the executive director advised to allow more time for evaluation.
This was all before the worker’s email raising concerns about office conditions, the board said, adding that it was also established policy not to give probationary workers the office entry code.
“One of the key factors [in AWO’s favour] was the evidence that the decision to terminate the worker’s employment had been made within the first two weeks of her employment,” says Kourangi. “The supervisor made this decision early into the probationary period and the only reason she didn’t terminate the worker's employment at that time was based on the recommendation of the executive director - they wanted to give her more of a chance, but she continued arriving to work late and engaging in the behaviors that formed the basis of the decision to dismiss her employment.”
The board also found that the worker’s complaints didn’t constitute an assertion of rights under the OHSA. Instead, they were general concerns about workplace comfort and interpersonal issues, said the board.
The test for demonstrating a reprisal requires the complainant to show a health and safety issue was raised and a connection between that issue and the negative consequence suffered by the employee, says Kourangi.
“The worker complained about open windows and inadequate lighting, but she didn't characterize these issues as health and safety concerns or conditions that she considered hazardous,” he says. “Then she also stated that her co-worker complained to her about the strength of her perfume, which she considered disrespectful - again, this doesn't raise any health and safety issue.”
No health and safety issue
“If the worker had raised legitimate health and safety concerns, then [AWO] would need to investigate those concerns, regardless of when it decided to terminate the worker's employment,” adds Kourangi. “Management can’t say, ‘We already decided to terminate your employment so we're not going to investigate a legitimate health and safety concern that's been raised’ - but in this case, because the worker hadn't raised a legitimate health and safety concern.”
The board concluded that AWO’s decision to terminate the worker’s probationary employment wasn’t motivated by any reprisal under the OHSA and was for legitimate concerns about the worker’s suitability, noting that the worker continued to work for AWO in a research role for several more months. The worker’s application was dismissed.
“This case affirms that employers can terminate probationary employees for legitimate performance reasons, even if they have raised workplace concerns,” says Kourangi. “And raising concerns about workplace comfort, such as temperature, lighting, and co-worker interactions, doesn’t necessarily engage health and safety protections unless a genuine health and safety risk is identified.”
Regardless, employers should ensure that performance concerns are documented early and any termination decisions align with past records to minimize the risk of reprisal claims, he adds.
“Employees who lose their job or experience workplace conflict often scrutinize every interaction, sometimes using legal buzzwords like discrimination, failure to accommodate, or reprisal to create the impression of a legitimate claim,” says Kourangi. “But throwing in every minor detail and legal argument without clearly connecting it to a cause of action or supporting it with evidence can backfire by weakening credibility - at the end of the day, they're a disgruntled employee who perceives they've been mistreated, but allegations have to be supported [by evidence].”
