• Tony Wong

Damages for Termination of Employee in Reprisal Against s. 50 of the OHSA

Updated: Sep 9

Some have under-estimated the Ontario Health and Safety Act (OHSA) and regarded it as "all bark and no bite". But they are HUGELY mistaken. Ever since Tandy Electronics Ltd.(Radio Shack) v.USWA, 1980 CanLII 1738 (ON SC), it is accepted that the Ontario Labour Relations Board (OLRB)’s remedial arsenal includes the awarding of damages to employees for violation of a statutory prohibition, subject only to the caveat that such be compensatory and not punitive.


Topics Will be Covered in This Post:

  1. What is Termination in Reprisal And How to Complain About it?

  2. What Damages Are Available if An Employee has been Terminated in Reprisal?

  3. Reversed Burden of Proof

  4. Damages available for A Termination in Retaliation

  5. Reinstatement

  6. Loss of Employment

  7. Loss of Wages

  8. Mental Distress

  9. Cases to Demonstrate the Principles Above

  10. Brenda Bastien v 817775 Ontario Limited (Pro-Hairlines)

  11. Thompson v 580062 Ontario Inc (Slainte Irish Gastropub)

  12. Conclusion

1. What is Termination in Reprisal And How to Complain About it?


An employee who have been terminated in reprisal when they are terminated shortly after they voiced their complaints to the management or after trying to enforce their employment law rights guaranteed under s. 50 of OHSA.


An employee in entitled to filed a complaint to the Ministry of Labour. If the Ministry of Labour determined that further action is needed, the case will be referred to the Ontario Labour Relations Board (OLRB).


The OLRB is an independent tribunal that can review a worker’s reprisal complaint or a referral from the Ministry of Labour, Training and Skills Development to try to mediate a settlement.


If a settlement cannot be reached, the OLRB may hold a consultation or hearing, and may make orders to:

  • remove or change any penalty the employer may have carried out

  • reinstate/rehire the worker

  • compensate the worker for related losses

You may also wish to read the OLRB’s Information Bulletin No. 14, which describes how they handle applications or referrals by workers who complain that their employer has violated the reprisal protections under section 50 of the OHSA.


2. What Damages Are Available if An Employee has been Terminated in Reprisal?

Reversed Burden of Proof


Pursuant to s. 50 (5) of OHSA, once an employee filed a s. 50 complaint, the employer has the burden of proof to establish that it did not act contrary to the provisions of OHSA.


Damages available for A Termination in Retaliation


The OLRB's remedial power to award damage is board. The Court in Tandy Electronics Ltd. (Radio Shack) has stated in paragraph 54 that:


So long as the award of the Board is compensatory and not punitive; so long as it flows from the scope, intent, and provisions of the Act itself, then the award of damages is within the jurisdiction of the Board. The mere fact that the award of damages is novel, that the remedy is innovative, should not be a reason for finding it unreasonable.


See also Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, citing the decision of the Supreme Court of Canada in Honda Canada Inc. v. Keays, [2008] 2 SCR 362 adopting a board approach which allows for aggravated damages in a wrongful dismissal action not only for wages lost but for the dismissed employee’s mental distress due to the manner of termination.

We will discuss 4 types of damages commonly being sought after in OHSA s. 50 Reprisal cases:

  1. Reinstatement

  2. Loss of Employment

  3. Loss of Wages

  4. Mental Distress

1. Reinstatement


The default remedy for a termination in reprisal is reinstatement. You have been terminated wrongfully against the law. It's only fair that you are being reinstated to rectify the wrongs being done against you. See e.g. McLaughlin v. Graphite Specialty Products Inc., 2009 CanLII 22341 (ON LRB).


2. Loss of Employment


But sometimes an employee is being terminated for complaining against workplace discrimination and workplace harassment or for refusing to work in an unsafe workplace. In that situation, a reinstatement could potentially make it worse. And in those cases, the alternative remedy is damage for loss of employment.


In addition, if an employee has obtained alternative employment prior to the outcome determination of the OHSA complaint, reinstatement is obviously out of the question. The alternative damage of loss of employment will be awarded in those cases.


See e.g. Thompson v 580062 Ontario Inc (Slainte Irish Gastropub), 2015 CanLII 76907 (ON LRB)


3. Loss of Wages


Loss of Wages is very similar to reasonable notice in a wrongful dismissal case. It is to compensate an employee who have been terminated illegally for loss wages, subject to the duty to mitigate.


Despite the clear overlap between loss of employment and loss of wages, adjudicators have been known to award both kinds of damages, as demonstrated in case law.


See e.g. Brenda Bastien v 817775 Ontario Limited (Pro-Hairlines), 2014 CanLII 65582 (ON LRB).


4. Mental Distress


Mental distress is a form of aggravated damages awarded due to the manner in which the employee was dismissed, and to punish the employer's bad faith conduct.


See e.g. Brenda Bastien v 817775 Ontario Limited (Pro-Hairlines), 2014 CanLII 65582 (ON LRB); Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419.


3. Cases to Demonstrate the Principles Above

1. Brenda Bastien v 817775 Ontario Limited (Pro-Hairlines)


In Brenda Bastien v 817775 Ontario Limited (Pro-Hairlines), 2014 CanLII 65582 (ON LRB), the employee worked at a hair salon. She suffered an injury at work as a result of unsafe working conditions. The employer (Mr. Vasiliades) did not take any steps to address the safety issues, nor did it report the injury to the Workplace Safety and Insurance Board.


After the employee filed a complaint with the Ministry of Labour, the employer dismissed her. She then filed a safety-reprisal complaint with the Ontario Labour Relations Board. The employer did not attend the hearing at the OLRB.


Decision by the Board:


Wages Lost

... [T]he Complainant is entitled to damages from the date of dismissal—July 11, 2013— at least through to the date of hearing—December 6, 2013— a period of twenty-one (21) weeks, is clear. But she continued to be out of work on the date of hearing, and given the difficulty of securing employment during the holiday season, an additional six (6) weeks would be a reasonable period of time for the Complainant to have found suitable alternate employment, and a period for which she should be compensated for lost opportunity of future employment. [at para. 29]


The Board orders the Responding Parties, jointly and severally, to compensate the Complainant for wages lost by reason of her dismissal contrary to OHSA s.50(1): i) for the twenty-one (21) week period between her date of dismissal to the date of hearing; and ii) for an additional six (6) week period thereafter, for a total of twenty-seven (27) weeks’ compensation for wages lost. At the time of her dismissal the Complainant was paid $617.00 weekly. Total compensation awarded herein for wages lost amounts to $16,659.00 [$617 x 27 = $16, 659.00]. [at para. 30]


Mental Distress

Here the evidence is clear that the circumstances of the Complainant’s dismissal were insensitive, demeaning and humiliating. Mr. Vasiliades callously disregarded her workplace injury, failing to report it to the Workplace Safety and Insurance Board and pressured her to continue working despite her protestations of the seriousness of her injury. The Complainant was summarily dismissed while on sick leave solely for acting in accordance with the statutory mandate when she reported the hazardous working condition and her injury to the Ministry; she was threatened with arrest were she to set foot on the premises of Pro-Hairlines; she was denied her final paycheque; she was denied the opportunity to collect EI by the Employer’s bogus claim that she was self-employed and its refusal, in total disregard of federal legislation, to issue an ROE to which she was entitled. The Complainant was no longer self-sufficient as a direct result of the Employer’s conduct and suffered loss of self-esteem as she was forced to rely on her father for the basic necessities of food and shelter. Such economic dependence was humiliating for the Complainant. The psychological and mental distress she suffered was compounded by the lingering physical effects of the serious electrical shock she had sustained due to the hazardous conditions at the workplace for which the Employer was responsible. The Complainant’s sense of loss of dignity and self-respect can be laid directly at the feet of the Employer, acting through Mr. Vasiliades who throughout the dismissal process acted in a manner that was unfair and in bad faith, being both untruthful, misleading and unduly insensitive. [at para. 36]


All of the foregoing leads the Board to conclude that the Complainant is entitled in addition to damages for loss of employment, to additional damages for the mental distress she suffered as a direct result of the manner in which she was dismissed. Mr. Vasiliades, the directing mind of both Responding Parties, acted unjustly and in bad faith in dismissing the Complainant. The Board orders the Responding Parties, jointly and severally, to compensate the Complainant by way of aggravated damages in the amount of $7500 by reason of her dismissal contrary to OHSA s.50(1). [at para. 37]


2. Thompson v 580062 Ontario Inc (Slainte Irish Gastropub)

In Thompson v 580062 Ontario Inc (Slainte Irish Gastropub), 2015 CanLII 76907 (ON LRB), a restaurant employed Ms. Thompson as a night manager. Ms. Thompson accused the restaurant owner of calling her rude names and making profane statements on November 8, 2014. Ms. Thompson also accused the owner of grabbing her and pushing her toward the door. Ms. Thompson reported the incident to her manager on the same evening.


Two days later, Ms. Thompson attended the restaurant to check her work schedule and found she was not scheduled to work. The manager told Ms. Thompson that the owner had requested that she not be scheduled. Ms. Thompson then reported the incidents of November 8, 2014 to the Ministry of Labour.


On November 18, 2014, Ms. Thompson sent the owner an email complaining of workplace harassment and violence, and requested a copy of the restaurant’s workplace violence and harassment policies. On November 21, 2014, the owner advised Ms. Thompson that the Ministry of Labour had commenced an inspection under the OHSA. The owner never provided the requested policies to Ms. Thompson, and she was never scheduled to work again despite repeated requests. The employer did not attend the hearing at the OLRB.


Decision by the Board:


The Employer’s actions constituted a reprisal

I find that Ms. Thompson’s: 1) initial complaint to Mr. Wogan on November 8, 2014; 2) further complaint and request for a copy of the Employer’s formal policy and procedures concerning workplace violence and harassment (she was entitled to receive these documents under subsection 32.0.5(2) of the Act); and 3) formal complaint to the Ministry of Labour, each constitutes an attempt to exercise her rights under the Act. [at para. 18]

The Employer’s continued failure to schedule Ms. Thompson, after she exercised these rights under the Act, constitute prohibited actions pursuant to section 50 of the Act. In the absence of an explanation from the Employer, and in light of the uncontested information that Ms. Thompson provided, I find there to be a nexus between the Employer’s refusal to continue employing Ms. Thompson and the exercise of these rights. [at para. 19]

In light of the foregoing, I find that the Employer has violated section 50 of the Act by failing to schedule Ms. Thompson for any further shifts after she exercised her rights under the Act. [at para. 20]


Damages for Loss of Employment in Lieu of Reinstatement

The presumptive remedy for a reprisal in contravention of section 50 of the Act is to reinstate the discharged employee and to provide the employee with lost wages from the date of the discharge up until the date of the reinstatement subject to mitigation. Ms. Thompson does not wish to return to work for the Employer. Given the manner in which her employment ended, I do not find that reinstatement would be a viable remedy in the circumstances. I agree with counsel that, in the place of reinstatement, Ms. Thompson is entitled to damages for loss of employment. [at para. 21]


How to Compute Damages for Loss of Employment


Ms. Thompson secured new employment on January 19, 2015 and fully mitigated her losses thereafter. The uncontroverted information that Ms. Thompson provided revealed that Ms. Thompson would have earned $3,741 during 10 weeks of employment with the Employer [from the time of dismissal to the time of securing new employment on January 19, 2015]. Accordingly, she is entitled to that amount in respect of loss of employment. [at para. 22]

How to Compute Damages for Loss of Wages


Counsel for Ms. Thompson argued that Ms. Thompson is also entitled to damages for loss of wages. I agree.... Since Ms. Thompson was out of work for 10 weeks she is entitled to $3,741 which represents 10 weeks of wages. Ms. Thompson advised that she partially mitigated her loss by earning $187 dollars of income during that 10-week period. That amount must be subtracted from her entitlement. Accordingly, as damages for loss of employment, Ms. Thompson is entitled to $3,741 minus $187, which equals $3,554 plus 4% vacation pay thereon ($142.16) for a total of $3,696.16. [at para. 23]

Conclusion


Damages for reprisal against by employer isn't exactly rocket science. Each case is assessed on its particular facts taking into account the modern approach.


If you involved in a retaliation termination scenario, you are well advised to consult an an employment lawyer consultation as soon as possible to preserve your employment law legal entitlements.

Call us now at 647-849-6582 or Contact Us Now if you have any questions or concerns in related to employment contract, or you want to book an appointment for a legal consultation.

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