OLRB looks at case where employer claimed dismissal was part of restructuring, not reprisal
The Ontario Labour Relations Board has dismissed an application by a worker alleging she was wrongfully dismissed by her employer in retaliation for raising workplace safety concerns.
The worker was hired as a dispatcher in June 2023 by County Transport (CT), a trucking company based in Belleville, Ont. CT hired the worker because it had signed a new contract with another trucking company that increased its workload, requiring an additional dispatcher.
According to the worker, she felt that she experienced harassment and bullying from others in the workplace, such as unacceptable behaviour and scrutiny. She spoke to CT’s office manager three times about it, but she felt that her concerns weren’t being addressed.
Harassment and bullying concerns
The worker sent CT’s owner a message through the messaging app WhatsApp on Aug. 25, saying that she wanted to “discuss something,” she had spoken to the office manager, and she needed “clarity on a few things. When the owner didn’t respond, she sent a second message on Nov. 20 advising him that “I have things that I would like to discuss.” The owner still didn’t reply.
On Dec. 12, the worker approached the owner in his office, but the owner said that he was too busy to meet with her. He didn’t want to meet with the worker because he didn’t deal with the day-to-day running of the office and the worker hadn’t followed the proper company hierarchy.
A short time later, CT conducted a year-end audit that showed sales and profit had declined significantly, largely because it had lost the big contract with the other trucking company. After reviewing the audit report showing a net profit decline of 51 per cent, the owner decided to restructure the company by terminating the employment of the worker and two truck drivers, as well as reducing the hours of the rest of the dispatchers. The worker was the most junior dispatcher.
Unlawful reprisal
The worker filed an application alleging that her termination was an unlawful reprisal related to concerns she attempted to raise regarding alleged harassment and bullying in the workplace. Under s. 50(1) of the Ontario Occupational Health and Safety Act (OHSA), employees are protected from disciplinary action, including termination, when acting in compliance with or seeking enforcement of the OHSA.
The board noted that for a breach of the OHSA to be established, three elements must be met - the applicant must have sought to enforce the OHSA, experienced an adverse employment action, and there must be a causal link between the two.
The board also noted that the issue in this case wasn’t whether CT was compliant with the OHSA, but whether the worker’s termination was unlawfully related to any attempt to enforce her protections under the OHSA.
The board found that the worker’s messages to the owner didn’t specify the nature of her concerns and the worker didn’t file a formal complaint under any harassment policy. As a result, there was no way that the owner could have known about the worker’s concerns related to her rights under the OHSA, said the board, adding that s. 50 of the OHSA doesn’t cover general workplace dissatisfaction unless there is a clear attempt to enforce safety rights.
No clear raising of safety concerns
The board noted that any attempt to enforce the OHSA required a “high level of formality,” but there was no clear indication that the worker clearly raised safety concerns that would have been known to the owner when he made the termination decision – which included two other employees.
The board determined that the worker’s messages requesting meetings without detailing specific safety-related issues didn’t amount to protected conduct under the OHSA and the owner was unaware of any safety concerns. As a result, the worker’s termination wasn’t related to any exercise of her rights under the OHSA and wasn’t a reprisal, the board said in dismissing the worker’s application.
