Constructive dismissal: No more shifts after worker raises health concerns

Employer denies dismissing worker – but she went from 32 hours per week to zero

Constructive dismissal: No more shifts after worker raises health concerns

“Where you have concerns raised by an employee that relates to health issues, potential accommodation, safety, or a refusal of work, you have to take them in good faith.”

So says Aleksandra Pressey, a lawyer and workplace investigator at Williams HR Law in Markham, Ont., after the Ontario Labour Relations Board found that an employer constructively dismissed a worker who declined certain work due to health issues.

“There shouldn't be any assumptions,” she says.

“If you have a particularly problematic employee with a history of performance concerns, you may be less likely to believe them but, as an employer, you want to try to separate that and take whatever concern is presented in good faith.”

No employment contract

Rige Associates is a temporary staffing agency that provides employees to homeless shelters in Toronto. The worker joined Rige on Jan. 21, 2022.

Rige sent the worker a written employment contract, but the worker did not sign. However, Rige offered her shifts on a regular basis and she typically worked around 32 hours per week.

It was a mistake to allow the worker to start working without signing the employment contract, says Pressey.

“Not capturing the terms of the employment relationship in writing can be quite detrimental and it makes it difficult to clarify what the parties agreed to,” she says. “Certainly, at the end of the relationship, it makes the terms of separation unclear.”

The frontline assignments started to decrease in late June, so Rige’s CEO asked the worker if she would accept kitchen cooking assignments. The worker said that she would prefer not to do kitchen work because of health concerns.

According to the worker, when she told the CEO of her health concerns, he replied that he wouldn’t accept that “garbage” and hung up on her. The CEO denied speaking harshly to her.

Rige assigned the worker to six kitchen shifts beginning on July 1 and the worker agreed to try them out.

A worker’s dismissal was due to her performance, not her harassment complaint, the Ontario Labour Relations Board ruled.

Worker felt ill

The worker worked a kitchen shift on July 1, but she found the heat unbearable, she felt dizzy, and she developed a headache.

The next morning, the worker felt weak and dizzy with a persistent headache. She called Rige’s operations co-ordinator to explain her symptoms and that she couldn’t work kitchen shifts. She was patched through to the CEO, who said that she could “take the shifts, pay him, quit, or go to court.”

The CEO acknowledged that the worker told him that she couldn’t work in the kitchen, but he denied making the comment.

The worker didn’t receive any more shifts from Rige, although she told the company that she was available for frontline work.

An Ontario employer could not use other reasons for dismissal when it waited until a worker made a request for holiday pay to fire him, an arbitrator ruled.

Medical note

On July 4, the worker provided a doctor’s note stating that she was “unable to work in any setting which involves heat or cooking due to medical reasons.”

On July 7, the worker emailed a staff member at a homeless shelter to complain about the CEO’s comments. It was forwarded to the CEO, who said that clients were complaining that the worker was constantly calling them and they didn’t want her assigned to them. The worker denied calling any shelters.

The worker emailed Rige’s payroll manager on July 12 and recounted her earlier conversation with the CEO. She asked if the company still wanted to work with her. The same day, the CEO wrote to the worker accusing her of “manipulation” of their discussion.

The CEO claimed that he was exercising his discretion to assign shifts to other employees, so the worker looked for other employment. She was unsuccessful, so she enrolled in a part-time homeless shelter program at a college.

An employer that fired a probationary employee was already questioning her ability when she filed a harassment complaint, said the Ontario Labour Relations Board.

Reprisal complaint

The worker filed a complaint under the Ontario Occupational Health and Safety Act (OHSA) alleging that Rige dismissed her as a reprisal for raising health issues.

Rige argued that the worker didn’t mention her health issues until she contacted the payroll manager and she wasn’t dismissed, as clients didn’t want her assigned to them and no staff member was guaranteed a number of shift hours.

Although the worker made an OHSA complaint, Pressey notes that the concept of reprisal doesn’t just show up in the OHSA.

“Generally, if an employee tries to assert their right to something, they shouldn't be punished for it – whether it's a dismissal, a threat to dismiss, or some sort of discipline or penalty,” says Pressey.

“We see that in the [OHSA] s. 50, but also in human rights legislation there are similar concepts, and the same under the Employment Standards Act – if somebody comes to you and says, for example, ‘I need a protected leave’ and then you surprise fire them, it's a similar kind of situation.”

The board found that the worker’s account of the CEO’s comments was credible, as she was consistent in telling it to a shelter staffer and the payroll manager. As for the CEO’s denial that the worker had been dismissed, the board didn’t believe it – the worker received an average of 32 hours per week until she raised her medical issues and nothing after. This was not an exercise of discretion as the CEO claimed, but a constructive dismissal, said the board.

The firing of a worker who had already been given a final warning was a reprisal for a safety complaint, the Ontario Labour Relations Board ruled.

Right to refuse unsafe work

The board also found that the worker was entitled to exercise her right to refuse unsafe work under the OHSA after her experience with kitchen work, and her inability to do kitchen work was later supported by a doctor’s note.

Rige didn’t make any good-faith acknowledgment of the worker’s potential health issues that affected her ability to work in the kitchen, says Pressey.

“Initially, the employee was saying that she had some health issues and, allegedly, the employer responded with, ‘I'm not going to accept any of that garbage’ and hung up on her,” she says. “So the first step should be, if you get some sort of health concern or accommodation request, take it in good faith and see if you need more information – you don't necessarily want to take the employee’s word for it, but the appropriate next step might be to say, ‘I need a doctor's note.’”

But employers shouldn’t request any diagnosis information, because that's not something that they are entitled to, Pressey adds.

“Request prognosis and medical limitation information so that you as the employer can make sure that you're fulfilling your duties under occupational health and safety legislation to take every reasonable precaution to protect the health and safety of the employee at work and, also, so that you can make sure that you're not in violation of any accommodation obligations under the Human Rights Code.”

The board determined that Rige did not meet its onus of proving that the worker’s dismissal was not a reprisal. Rige was ordered to pay more than $10,000 to the worker – $7,787 in lost wages and vacation pay plus $2,500 for emotional pain and suffering from the “insensitive and humiliating” dismissal.

Constructive dismissal

Rige didn’t take any formal steps to terminate the employment relationship, but that doesn't necessarily have to be the case for it to be a dismissal, says Pressey.

“The [board] applied the concept of constructive dismissal – a unilateral change made by the employer to a fundamental term of the employment relationship, where the employer isn't formally terminating the employment relationship but is essentially demonstrating that they don't tend to be bound by the terms of the employment relationship any longer,” she says.

“That concept exists to prevent an employer from doing exactly something like this – just not offering somebody shifts ever again and saying, ‘We never fired her so we don't have to pay her any of her final entitlements on cessation of her employment.’

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