'A lot of people forget that terminations can happen because someone's just not a good fit': lawyer
“When you’re going to terminate someone, you have to legitimately think through the termination, because perspective is really important.”
So says employment lawyer Natasha Atyeo of Grosman Gale Fletcher Hopkins LLP in Toronto, after an Ontario employer successfully defended itself against a worker’s complaint that her firing during her probationary period was a reprisal for raising workplace safety concerns.
Active Lives Canada (ALC) is a charitable organization based in Shelburne, Ont., that provides day programs for adults with special. On Jan. 2, 2025, ALC hired the worker as a program co-ordinator, subject to a six-month probationary period.
A short time after she joined ALC, the worker reported to ALC’s executive director that two baseboard heaters at one of the organization’s two locations weren’t working properly, making it too cold for clients in the winter. She suggested bringing in her son – who was an electrical safety inspector – to look at them, but ALC had a volunteer repair the heaters.
The worker also raised the issue of fire extinguishers at a location ALC had rented, as they hadn’t been inspected for a long time and needed updating. The executive director addressed the problem quickly.
In late February, the worker complained to the executive director that the van used to transport clients was in poor condition and shouldn’t be on the road. The executive director had the van repaired.
Workplace disputes
In addition to raising the safety issues – which was part of her job - the worker had other issues with the executive director. According to her supervisor, the worker sometimes refused to co-operate with him. The supervisor emailed the worker and said she felt anxiety about being the “middleman” in disputes between them, adding that “if you refuse to work with [the executive director], you are choosing not to work with [ALC].” The worker also discussed an incident involving the executive director with other ALC staff.
ALC didn’t take any formal disciplinary measures, but the supervisor had informal discussions with the worker.
In late February, the worker asked her supervisor for a performance review to clarify how things were going, but it didn’t happen.
The supervisor raised concerns with the executive director that other staff didn’t feel the worker was a team player. The supervisor also felt that she had trouble getting the worker “to implement stuff.” The executive director himself had concerns over how the worker was doing her job, as one of her primary responsibilities was scheduling so parents of clients could know in advance what activities were taking place, and there were several instances when the schedule hadn’t been ready on time.
By this point, the executive director felt that the worker had stopped responding to him, such as in a staff meeting where she stayed quiet instead of providing input. He tried to meet with the worker to discuss his concerns, but the worker went on a short sick leave.
Termination of employment
The executive director was able to meet with the worker on March 3 and said that they hadn’t gotten along “since day one.” The worker agreed that she admitted that she didn’t work well with men, and he was one.
The same day, ALC terminated the worker’s employment because she wasn’t a good fit for the organization and she couldn’t work with the executive director. Following the termination, the executive director learned that the worker had been discussing the incident involving him, so he sent the worker a “cease and desist” letter claiming that she was damaging his reputation by advising former colleagues about it.
The worker filed a complaint with the board alleging that her termination was an unlawful reprisal for her raising safety issues and exercising her rights under the Ontario Occupational Health and Safety Act (OHSA). She initially sought reinstatement but later withdrew that request, claiming only back pay and damages.
The Ontario Labour Relations Board noted that for there to be a violation of the OHSA, there must be three factors – the worker must have acted in compliance with the OHSA or its regulations; there must be an adverse employment action such as a dismissal, discipline, or a threat of either; and the adverse action must be at least in part a retaliation for the worker exercising her rights under the OHSA.
The board found that the first two parts of the test were met – the worker raised safety concerns and therefore acted in compliance with the OHSA, and her termination was an adverse action taken by ALC. The burden of proof lay with ALC to show that the termination wasn’t related to the worker’s raising of safety concerns.
No reprisal
The board also found that ALC met its burden of proof that the worker’s dismissal wasn’t motivated by her safety complaints. The reasons for dismissal were credible, as the worker acknowledged that she didn’t get along with the executive director, while the supervisor’s emails were further evidence of their incompatibility and the worker knew that her job required working with him.
Other ALC employees also testified that the worker wasn’t viewed as a “team player,” with the executive director pointing out scheduling – a big part of the worker’s job - and communication problems.
ALC’s honesty and good recordkeeping – showing that safety concerns were addressed, the worker’s performance was discussed, and the executive director acknowledging the incident about which the worker had talked to colleagues - added to its credibility, according to Atyeo.
“Employers have a reverse onus to prove that the termination wasn’t a reprisal for raising health and safety concerns,” she says. “It’s a high bar, and the best way to go about it is to keep records and be as honest as you can in the reasons for the termination - that should help protect you as best as you can.”
No formal discipline
The labour sphere has looser rules than general employment law, and they’re frequently based more on logic, adds Atyeo.
“If somebody's on probation in their first three months, the employer knows it’s able to terminate without providing much, if anything, so it’s kind of protected by those three months,” she says. “You have a new employee and you want them to work out, so you're not going to immediately start formally disciplining them and giving them performance enhancement plans - you're going to try to handle it informally, which is what [ALC] tried to do because, logically, an employer is probably not going to do that to an employee who's been working for such little time with them.”
As for the worker’s safety concerns, the evidence showed that the executive director promptly dealt with each one as they came up, said the board.
“The fact that [ALC] immediately fixed most of the safety issues added to the credibility of the employer, and that was one of the turning points of this case,” says Atyeo. “The complaints were well documented and almost immediately dealt with, and that helped their case that [the termination] wasn't a reprisal.”
While acknowledging that the worker may have had a genuine belief that she was dismissed for raising safety concerns, the board determined that her termination was due to interpersonal conflict and performance issues. The worker’s complaint was dismissed.
Probationary period
“I think a lot of people forget that terminations can happen because someone’s just not a good fit – they don’t have to be a result of something,” says Atyeo. “That’s the purpose of probationary period - a time to see your work quality and, especially in smaller workplaces, whether or not you're going to be able to get along with the rest of the staff and fit in.”
“That’s a legitimate reason for termination, outside the probationary period but especially within the probationary period,” she adds.
Having that legitimate reason comes back to good recordkeeping and thinking through the termination decision, particularly if there’s a potential for it to be seen as a reprisal, says Atyeo.
“I believe that the worker legitimately felt like she was terminated as a result of a reprisal, so it's important to just take a pause,” she says. “Even if you know there are performance or workplace issues, you have to review for any pitfalls, because from the employee’s perspective, you never know what they're going to connect together.”
See Hartley v. Active Lives Canada, 2025 CanLII 50758.
