Company claimed a lack of work; termination came after worker raised safety issues
An Ontario company’s firing of a worker who had just completed his probationary period but raised health and safety concerned was a reprisal for raising those concerns, the Ontario Labour Relations Board has ruled.
North 44 is a property management company based in Markham Ont., which manages five residential apartment buildings in Sault Ste. Marie, Ont. On Dec. 4, 2017, North 44 hired William Thorogood to be a maintenance technician for its Sault Ste. Marie properties. Thorogood was one of three maintenance technicians for the five buildings, performing minor repairs, painting, working on cabinetry, debris removal, and other general maintenance. He and the other Sault Ste. Marie employees reported to North 44’s area manager, who met with them every two weeks.
When Thorogood was hired — and put on a 90-day probationary period — North 44 told him that the buildings were old and needed a lot of maintenance as they were “a year behind schedule.” North 44 was also anticipating acquiring a property with another 59 units to manage in a couple of months.
In February 2018, a co-worker of Thorogood told him the area manager wanted them to clean a building’s attic that had been contaminated by pigeons and other animals. Thorogood was concerned about the health risks of cleaning the attic without wearing protective equipment and asked the co-worker to raise this issue with the area manager, since he was still on probation and was worried about a reprisal if he was perceived as a causing any trouble.
The co-worker talked to the area manager about it, and the area manager told him to research the cleaning procedure online. The area manager also researched it, and after reviewing the information told Thorogood that the job was safe and they only needed to wear dust masks.
Thorogood said the information they had wasn’t site specific and didn’t allay his safety concerns. He told the area manager he was refusing to perform the work without a proper procedure in place. He and the co-worker also discussed other health and safety concerns they had noticed, as they didn’t feel the company was very concerned about health and safety.
North 44 acquired lead and pesticide respirator masks later that month and scheduled mask fittings with the occupational health nurse for Thorogood and the co-worker, but these appointments were cancelled. The company eventually decided it was easier to contract out the attic cleaning job.
On March 2, the co-worker outlined the health and safety concerns in an email, which the area manager forwarded to upper management. The company’s response to the area manager was to point out that work was getting low and it planned to lay off the co-worker for lack of work in a few weeks and “deal with the backlash.” A couple of weeks earlier, it had learned that it wouldn’t be acquiring the additional units to manage, so it didn’t know how long it would have enough work for the existing maintenance staff.
Performance assessment turned into safety discussion
Thorogood completed his probationary period on March 7 and met with the area manager for a performance assessment. Thorogood raised his safety concerns, which included “no safety discussions, information board, no green book, no eye wash station, regular health and safety talks, working at heights greater than eight feet should have a platform.” The area manager didn’t feel comfortable talking about these issues in a performance review meeting and asked Thorogood why he hadn’t raised them earlier, to which she said he replied that he was an introvert. Thorogood denied making such a statement and said he was concerned about safety and also wanted to support his co-worker.
After the performance assessment meeting, Thorogood felt North 44 treated him differently. He heard about the company’s intentions to lay off his co-worker and was concerned about his own job.
North 44 instituted formal health and safety meetings later that month. However, it terminated Thorogood’s employment on March 29. The termination letter didn’t state a reason for termination, but the area manager told Thorogood that since North 44 hadn’t acquired the new units to manage, there wasn’t enough work for three full-time maintenance technicians and he had the least seniority.
Two weeks after Thorogood’s termination, an inspector from the Ontario Ministry of Labour visited the workplace and issued compliance requirements, though no orders. North 44 complied with all of them and eventually developed new health and safety policies that addressed many of the safety concerns Thorogood had raised.
Thorogood filed a complaint alleging that his termination was a reprisal for raising safety concerns under the province’s Occupational Health and Safety Act.
The board noted that North 44 had the burden of proving that Thorogood’s termination was for business reasons only and his raising of safety concerns wasn’t a factor, particularly since the timing of the termination so soon after Thorogood’s complaints was suspicious.
While North 44 claimed it had trouble finding work for all of its maintenance technicians because of its failure to acquire the additional residential units, the board found the company was aware of this in early February 2018. However, the company kept all three technicians at the time and even allowed Thorogood to complete his probationary period in early March — which came with an accompanying raise. All indications at that point were that North 44 intended to keep Thorogood for the time being, said the board.
But then Thorogood had his performance assessment meeting, at which he raised the safety concerns he had been discussing with his co-worker. The same day, upper management had indicated the co-worker was going to be dismissed for lack of work, but after Thorogood’s meeting, he was the one terminated. In addition, his termination letter lacked a reason for termination.
“The legitimacy of the termination becomes even more doubtful when North 44’s stated business reason, lack of work, apparently existed for some time prior to (Thorogood’s) articulation of health and safety concerns,” said the board. “
The board also noted that while the Ministry of Labour inspector didn’t issue any health and safety orders against North 44, this didn’t mean there was no reprisal for Thorogood’s concerns — “statutory compliance is not the focus” of the issue at hand, said the board.
The board found that Thorogood’s raising of health and safety concerns was a factor in his termination of employment, which was contrary to the act. Since Thorogood didn’t seek reinstatement, North 44 was ordered to compensate him for eight weeks of lost wages from his termination date to the date of the hearing, just over one month’s pay for the loss of his job, and $500 for emotional pain and suffering, for a total of $4,002.70.
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