Engineering technologist filed harassment complaint against manager, Human Rights and Investigation Department
A long-tenured Toronto Transit Commission engineering technologist who claimed unlawful reprisal after his termination has been overruled by the Ontario Labour Relations Board (OLRB).
The individual had filed a harassment complaint against his manager, then forwarded a superseded version of the investigator's findings to the TTC chair and to his manager's professional regulator. He was later dismissed.
Vice-chair Michael McCrory found that while the technologist had exercised activity protected by section 50(1) of the Occupational Health and Safety Act, the TTC established that his protected activity played no part in his Dec. 4, 2024 dismissal.
Employed since 2008, he had an extensive disciplinary record stretching back to 2016, including four suspensions and multiple expectations letters, and had been warned of possible termination on at least five occasions between 2019 and 2023.
Violation of TTC policy
In December 2023, the technologist filed a harassment complaint against his manager with the TTC's Human Rights and Investigation Department, alleging the manager asked a colleague to file a grievance against him for the purpose of terminating his employment. The investigator initially wrote on Oct. 16, 2024 that the allegation had been substantiated, and concluded there had been a violation of the TTC's Respect and Dignity Policy.
The investigator issued a revised letter on Nov. 4, 2024, stating the allegation was only partially substantiated. The revision said: "I did not find that the [TTC] asked [the technologist]'s colleague to file a grievance for the purpose of firing [him]. However, I find [the manager] suggested the colleague file a grievance and did so for the purpose of using it against [the technologist]." The investigator's earlier finding that there had been a violation of the Respect and Dignity Policy remained undisturbed by the revision.
Two days later, the technologist forwarded the original letter to the TTC Chair. On Nov. 12, 2024, he filed a second complaint with the Professional Engineers of Ontario (PEO), attaching the original letter and citing passages from it without making any mention of the amended findings.
Bad faith complaint, not reprisal
The TTC concluded that the second PEO complaint was made in bad faith and terminated the technologist on Dec. 4, 2024. The board agreed, finding the complaint "contained information which [he] knew to be false." Evidence accepted by the board included that the technologist had previously admitted to filing a PEO complaint against another manager "as a scare tactic to get him to back off."
McCrory found the 12- to 18-month gap between the protected activities and the termination undercut any inference of reprisal, noting that even after the protected activity, the TTC "pursued its efforts to salvage the employment relationship."
The board held that section 50(1) "does not protect workers who disregard clear direction from their employer," nor "workers who exercise a protected activity for improper reasons."
Misconduct after complaint
The TTC's termination letter pointed to the technologist's reliance on the pre-amended findings letter in communications with the TTC chair and the PEO, despite having been told it contained an error. The board accepted the TTC's view that the second PEO complaint was an attempt to mislead both the regulator and TTC board members into taking action against the manager.
Reasons invoked by the TTC also concerned behaviour that the employer had previously warned could result in termination if it persisted, including communicating internal allegations to the TTC's executive team and city councillors. In late February 2024, after concluding the technologist had engaged in insubordinate conduct by refusing to work his assigned shift, the TTC advised him he was being given a final opportunity to take immediate action and correct his behaviour.
McCrory concluded that he "was not terminated for filing that complaint but, rather, for misconduct in the aftermath of its filing."
