Dismissal happened 3 months after safety complaints
The Ontario Labour Relations Board has dismissed a worker’s application claiming that he was fired as a reprisal for trying to enforce his rights under occupational health and safety legislation.
The worker was employed as a package delivery driver for a company called Dostava starting on Nov. 27, 2023. He understood that a man named Martin Tong was responsible for Dostava’s human resources and the owner was only referred to as “Richard.”
The worker drove a van delivering packages from 4:30 to 11:30 p.m., although no breaks were specified. A short time into his employment, the worker took a break to have a meal, and Richard told him that he wasn’t allowed to take a break until he had completed all of his assigned deliveries.
However, the worker felt that he had more packages than he could deliver during his shift, as he only completed all of them once. When he told this to Richard, the latter reiterated that he could eat after he finished all of his deliveries.
Reprisal allegation
About one month later, in December, the worker was driving in a storm and the van began “slipping everywhere,” narrowly missing being involved in an accident. He told Tong and Richard that it was unsafe to not have winter tires, but they both said that Richard didn’t believe that winter tires were worth the money.
The worker’s employment was terminated on March 5, 2024. According to Dostava, the worker had failed to show up for work multiple times and had delivered parcels to the wrong address several times. The worker was also told that his work schedule “did not work for” them, although he said they had been agreeable to it.
The worker filed an application under s. 50 of the Ontario Occupational Health and Safety Act (OHSA) claiming that his termination was based on “false accusations” and was a reprisal for attempting to enforce the OHSA with regards to his meal breaks and requesting winter tires on the van.
The board noted that, under ss. 50(1) of the OHSA, an employer or person acting on behalf of an employer is prohibited from dismissing, disciplining, suspending, penalizing, intimidating, or coercing a worker for acting in compliance with the act, seeking its enforcement, or giving evidence in related proceedings. Although ss. 50(5) places the burden of proof on the employer in reprisal cases, the applicant must still establish facts capable of supporting a claim when the employer doesn’t appear, as it didn’t in this case, the board said.
Nexus between termination, safety compliance
To establish a violation of ss. 50(1), the applicant must demonstrate compliance with or attempt to enforce the Act, an alleged reprisal, and a reasonable nexus between the two, the board said.
The board found that the worker’s conversations regarding winter tires constituted attempts to enforce the OHSA - specifically the employer’s obligations to maintain equipment in good condition and to take every reasonable precaution in the circumstances to protect a worker. However, the worker’s concerns over meal breaks pertained to the Ontario Employment Standards Act, 2000 (ESA), as the OHSA doesn’t cover meal breaks, said the board in finding this issue wasn’t an attempt to enforce the latter act.
With the key issue being whether there was a nexus between the worker’s exercise of rights under the OHSA and his dismissal, the worker told the board that he “wouldn’t say” his request for a meal period or concern about winter tires caused his dismissal. He testified that he didn’t know why he was dismissed and was unable to make a connection between his exercise of rights and his termination.
The board referenced previous decisions indicating that a nexus may be inferred when compliance with the OHSA and consequences such as termination or discipline occur within a short time frame. However, in this case, the winter tire incident occurred in December 2023 and the worker’s employment was terminated nearly three months later. As a result, the board determined that it was unable to find that the winter tire incident was connected to the worker’s termination.
The worker’s application was dismissed. See Gameshamoorthy v. Martin, 2025 CanLII 63049.
