Worker made formal harassment complaint day after firing
The Ontario Labour Relations Board has dismissed a worker’s allegation that she was fired because of a workplace harassment complaint after the employer established that the worker made a serious breach of a policy.
The worker was a cashier at a Rexall/Pharma Plus store in Kanata, Ont.
On March 3, 2022, the store manager received letters from two Rexall employees describing events from two days earlier in which the worker had left the store before her shift ended. The manager met with each employee and the worker separately to discuss what had happened.
However, the worker became upset and refused to discuss the matter or provide any explanation, saying that she didn’t trust the manager. The manager issued a disciplinary warning for leaving the store early, but the worker refused to sign it.
Abuse of employee discount
Later that day, the manager received a text message from another employee stating that the worker had processed a transaction by her husband and using her employee discount herself, which was contrary to Rexall’s staff discount policy that stated “employees are not permitted to process their own program purchases, nor those of their spouse.” The manager reviewed surveillance footage that showed the worker processing her husband’s purchases and sent the footage to human resources on March 7.
The HR director contacted Rexall’s loss prevention department to investigate any unusual activity with the worker’s employee discount. It was confirmed that $1,900 had been spent using the worker’s employee discount over the previous eight months, making her the biggest user of the program at that store. The report also showed that the worker had processed her own purchases on five separate occasions and returned merchandise that had been purchased with her discount for store credit on nine other occasions.
Rexall strictly enforced the discount policy because it was generous, and the worker had been trained on the policy. She had completed an attestation confirming completion of the online training for the policy.
On March 7, management met with the worker virtually. The worker expressed concerns about Rexall’s online training program and, near the end, they raised the worker’s use of her employee discount. The worker initially said that she understood the policy but then couldn’t provide an explanation as to the irregularities in her use of the program. The meeting was ended because it was “no longer productive,” according to management.
Termination for cause
Management confirmed that the worker had been trained on the policy and decided to terminate her employment for cause for breaching the ban on employees processing their own purchases with a discount.
They met with the worker again on March 8 and formally terminated her employment. The worker claimed that she wasn’t told of the reasons for dismissal and was “paraded in front of other employees as if I was a criminal.” She denied engaging in improper conduct and knowingly breaching the policy.
On March 9, the day after she was dismissed, the worker made a formal complaint alleging harassment by a co-worker. She then filed a complaint with the Ontario Labour Relations Board alleging that she was terminated because she complained about harassment, discrimination, and bullying in the workplace, which was a breach of the Ontario Occupational Health and Safety Act (OHSA).
The worker claimed that, although she didn’t make a formal complaint until the day after her dismissal, she told the store manager about the harassment in the March 3 meeting and the HR manager in the March 7 virtual meeting. She alleged that her raising concerns about her lack of training was also a factor in the termination decision, as was the fact that she had filed a grievance over hours of work that had been settled and she had complained about being blocked from a full-time position.
Both the store manager and the HR manager denied that the worker had mentioned any concerns about harassment in the meetings.
3 elements to prove reprisal
The board noted that there were three elements to be proven to establish a reprisal under the OHSA – the worker acted in compliance with or sought enforcement of the OHSA, the worker suffered an adverse consequence, and there was a nexus between the action and the adverse consequence.
The board dismissed on a prima facie basis as factors in a reprisal the worker’s concerns about lack of training, her filing a grievance about hours of work, and her complaint about being blocked from a full-time position. All of these were unrelated to any act of compliance related to health and safety standards under the OHSA, so they couldn’t be factors in a reprisal under the act, said the board, leaving only the worker’s claims of harassment and bullying as a potential factor in her dismissal.
The board also noted that the OHSA recognizes an employee’s right to make workplace harassment complaints, which employers have an obligation to have a process for dealing with complaints. If Rexall’s dismissal of the worker was in any way related to the worker’s complaint, it would be an unlawful reprisal, the board said.
The board found that Rexall made it clear to the worker the basis for her termination, as the termination letter stated that she had violated the employee discount policy, which it considered serious misconduct that caused the company to lose confident in her and made continued employment not viable.
Formal harassment complaint after dismissal
The board also found that management did not receive a formal harassment complaint until after the worker’s dismissal, and management was credible in their denials that the worker said anything about it at the meetings. Both were straightforward with no reason to lie, while the worker was evasive and changed her claim on how much training she had received. There was no evidence that management was aware of the worker’s harassment claim when the termination decision was made based on the worker’s breach of the discount policy, said the board.
The board determined that the worker discharged its burden to establish that its termination decision was not affected by any unlawful grounds related to the worker seeking compliance with or enforcement of the OHSA. The worker’s application was dismissed. See Alena Azaranka v. Rexall/Pharma Plus Pharmacies Ltd., 2024 CanLII 3327.
