Worker reinstated with compensation for wages lost
A labour board has reinstated an Ontario worker whose dismissal following a final warning for a rumoured staged workplace accident was found to be a reprisal for the worker’s safety complaint.
Kim Le was hired as a general labourer by Safecross First Aid, a safety and first aid products supplier based in Toronto, in October 2014. His job involved the handling of safety supplies in the production area of Safecross’ facility, including moving boxes of materials between areas at the facility.
Some of the boxes Le had to carry were heavy, up to 60 pounds each, according to Le. They were also large enough that they blocked his vision when he carried them, which was troublesome since he often had to carry them upstairs to the facility’s second level.
In March 2015, Le began experiencing pain in his knees. He felt the pain was being caused by carrying heavy boxes between floors at the Safecross facility and the repetitive nature of numerous trips up and down the stairs during the workday. He told his supervisor about his pain and said he couldn’t continue to carry boxes between levels.
Le and his supervisor had differing accounts of the supervisor’s response. Le claimed the supervisor dismissed his concerns by telling Le he needed the money and should get on with his work. The supervisor said he relieved Le of the responsibility for carrying boxes between levels and later testified he had arranged for other workers to assist Le, but Le denied this was the case and that he was required to continue carrying heavy and cumbersome boxes up the stairs. He also claimed he consulted his department’s health and safety representative, but nothing came of it.
Rumours of staged workplace accident
On July 22, 2015, Safecross gave Le a disciplinary warning which was identified as a "final written warning." The warning was related to a request Le had made earlier in the year to lay him off so he could collect employment insurance benefits and pursue his education. Safecross had refused the request, as the company felt it had been accommodating Le’s attempts to take courses on his own.
The same day, Le talked to another manager and complained that he was being required to carry cabinets up the stairs. He said the cabinets were too heavy, the work was dangerous, and he had the right to refuse to do the work. He also asked the manager to direct his supervisor to stop assigning such work to him, but the manager simply said he would think about it without giving a definitive answer.
Safecross had become aware of rumours in the wake of its refusal of his layoff request that Le was telling co-workers he was planning on staging an accident in order to claim workers’ compensation benefits. This was particularly concerning for Safecross as Le had seemed to become "complacent" and he had made several errors since the refusal. In the final written warning, Safecross cautioned that such conduct "is a risk to yourself and to other employees and will not be tolerated." It went on to warn Le he should follow conduct guidelines in the employee handbook and "further infractions will result in disciplinary action including termination."
The final written warning was a departure from Safecross’ normal disciplinary process. Le had a clean disciplinary record since his employment started some ten months earlier and Safecross had a progressive discipline system that allowed for a verbal warning, a first written warning, and a second written warning, before getting to the point where a final written warning was usually given. The final written warning was the last step before dismissal.
The next day, July 23, Le’s supervisor noticed Le didn’t seem focused on his work and was "not doing what he would normally be doing." Concerned this was related to the rumours that Le was going to stage an accident, the supervisor contacted Le early in his shift and terminated his employment immediately, saying Le was "too weak" and could not live up to the demands of the job when things got busier over the next month. Le didn’t receive a termination letter.
Le filed a complaint with the Ontario Labour Relations Board, alleging his termination was a reprisal for his safety complaint regarding his carrying of heavy and difficult-to-handle boxes — such reprisals violated the Ontario Occupational Health and Safety Act, which prohibits employers from dismissing, threatening to dismiss, or intimidating a worker because the worker has acted in compliance with the act. He sought reinstatement as well as "general damages for the humiliation, hurt, harm, and mental anguish" he claimed to have suffered as a result of the dismissal.
The board found there was no dispute that Le had complained about the process he was required to follow and the effect it was having on him and his knees, as well as the safety risk when his vision was impaired by what he was carrying up the stairs. The supervisor’s claim that he relieved Le of those duties and arranged for others to help him showed Safecross was aware of Le’s concerns in March 2015 and when Le brought it to a manager’s attention in July, the company had been "on notice" of the issue for four months.
The board also found the termination of Le’s employment was an adverse impact that could potentially be considered a reprisal under the act, so Safecross had a reverse onus to prove there was no reprisal. Le was given a final written warning on July 22, which established that Safecross felt Le’s alleged plans to fake a workplace accident were worthy of such a warning but termination would arise only for "further infractions."
However, nothing changed between the issuance of the final written warning and the next day when Le was dismissed — except for Le’s complaint to the manager about his safety concerns. The only justification for the decision to dismiss Le on July 23 was that the supervisor noticed Le was behaving differently and assumed Le was going to confirm the rumours the company had heard that day. This "cannot possibly be accepted as sufficient to establish the ‘further infractions’ that the final written warning contemplated as the condition precedent to ‘disciplinary action including termination,’" said the board.
Without any further infractions, the board found "there must have been another spark to set off the termination process" — which it determined to be Le’s complaint to the manager. Safecross didn’t provide any compelling evidence that there was any further infraction other than Le’s complaint on July 23, so it found Le’s dismissal was a reprisal for his safety complaint.
Safecross was ordered to reinstate Le with compensation for wages lost since his termination. Le provided no evidence of the "humiliation, hurt, harm and mental anguish" he referred to in his complaint, so the board denied him any entitlement to additional damages.
For more information see:
• Le v. Safecross First Aid Ltd., 2015 CarswellOnt 17118 (Ont. Lab. Rel. Bd.).
