‘With one exception, there was no documentation of the alleged reasons for her dismissal’
The Ontario Labour Relations Board (OLRB) has found that Randstad Canada unlawfully dismissed a manager in retaliation for her workplace harassment complaint, according to a recent decision.
Vanessa Braganza, a seasoned manager recruited by Randstad in 2021, filed a complaint after witnessing, on three occasions, “a juvenile and vulgar party game” at corporate events.
The first occasion occurred at a corporate meeting, while the second and third occurred during a Randstad In-House Services (RIS) retreat. On June 15, 2022, following the third occasion, Braganza filed a complaint under Randstad’s Respect in the Workplace Policy using its confidential chat, “Speak Up.”
External investigation of harassment claim
Randstad then retained an experienced external investigator who prepared a detailed investigation report. The employer provided Braganza with a one-page summary of the report, which referred to five actions that, in the view of the investigator, constituted breaches of the Respect in the Workplace Policy.
“The letter stated that, in consequence, ‘Disciplinary action has been taken and we will be commencing an education campaign to respond and prevent similar incidents from occurring in future’,” said Brian Mulroney, vice-chair of the OLRB, in the decision.
Braganza started a medical leave of absence on June 1, 2022. She was originally scheduled to return to work on Sept. 20, 2022 but her return was delayed until Oct. 25, 2022. At that time, she was placed on a four-week work-hardening program and resumed full-time duties when it concluded.
Prior to her return, Braganza reached out to Marie-Pierre Gervais, Randstad’s vice-president of human resources, to express concern about reprisals and to request a transfer to another area within the company. Gervais subsequently advised her that there were no open positions with equivalent compensation and that a transfer was not possible.
Then, on Dec. 7, 2022, Randstad circulated an email announcing the promotion to vice-president of four HUB employees.
The HUB is “a specialized area within RIS,” according to the OLRB. The four had previously been Braganza’s peers. As a result of the change, Braganza was to report to a vice-president who had previously been a peer. Also, she retained neither of her previous clients and was reduced to working for a single client.
Then, on March 31, 2023, Randstad terminated Braganza’s employment, stating that “As a result of organizational restructuring, your role has been abolished."
Was it retaliation?
Braganza argued that these changes were not coincidental but amounted to retaliation for her complaint — a claim the OLRB ultimately upheld.
In assessing the case, the OLRB applied its established three-part test for reprisals under section 50 of the Occupational Health and Safety Act (OHSA):
- Did the worker seek enforcement of the Act?
- Did the worker suffer an adverse consequence?
- Is there a nexus—a connection—between the two?
Both parties agreed that Braganza’s complaint was protected activity under the Act. The Board found that her subsequent dismissal was an adverse consequence. The heart of the case, and the Board’s analysis, centred on whether there was a “nexus” between her protected activity and her termination.
The Board also cited Randstad’s failure to produce documentation supporting its claims of poor performance or legitimate restructuring.
“Randstad did not produce Ms. Braganza’s personnel file,” says Mulroney. “Nor was there any written evidence of concerns about her performance during the period before her medical leave. There was no documentation of any efforts made to find her an alternative position on her return. And, with one exception, there was no documentation of the alleged reasons for her dismissal.”
'Lack of precision' with dismissal
The OLRB was particularly critical of Randstad’s shifting explanations for the dismissal, noting that “the change in description of the reason for terminating Ms. Braganza’s employment suggests some lack of precision on the part of Randstad.”
Section 50(5) of the OHSA places the burden on employers to prove that a dismissal was not motivated by a worker’s exercise of their rights. The OLRB noted: “Even if the employer had what would otherwise be legitimate reasons for termination, if one factor in the decision is the applicant having exercised rights under the OHSA, the termination will be a violation of section 50 of the OHSA.”
The OLRB added that it is not claiming that Braganza was a model employee.
“The Board finds that it is possible, and perhaps even likely, that she may have struggled with some of the duties of her employment. However, even if such were to be the case, Randstad has failed to provide any evidence to show that its alleged reasons for dismissal are not ‘belatedly perceived inadequacies with a prohibited statutory motive’ and its invocation of the phrase ‘as a result of a restructuring’, mere jargon similar to ‘not a good fit’ or ‘lacked passion’.”
In this case, the Board concluded that Randstad failed to meet this burden, finding that the adverse actions against Braganza were “tainted” by retaliatory motive, “no matter how small.”
