Most occupational health and safety statutes across Canada contain provisions that prohibit employer reprisals for workplace health and safety matters. While the outcome of complaints made by workers regarding employer reprisals is always fact specific, employers had been taking comfort from several recent decisions.
Those decisions suggested that complaints regarding employer reprisals in relation to allegations of workplace harassment couldn’t be sustained under health and safety legislation. However, a recent decision of the Ontario Labour Relations Board in Ashworth v. Boston Pizza, where an employee was terminated after her manager allegedly confronted her in an angry manner, has changed this view.
Facts of the case
According to the employee, the assistant general manager (AGM) of Boston Pizza acted inappropriately when the employee entered the AGM’s office to explain her position concerning an earlier disagreement between them. The AGM demanded that the employee close the door and then positioned herself in front of the closed door and started screaming and pointing her finger in the employee’s face. The employee claimed that she was frightened and asked the manager to be allowed to leave the office, but the manager continued to be abusive.
The employee claimed that she became apprehensive about what the AGM might do and advised the AGM that she was quitting her employment to escape the situation. The employee was then permitted to leave the AGM’s office. The employee told another manager that she had said she was quitting as a means of avoiding the uncomfortable situation. That manager told the employee to go home and that the matter would be looked into. The employee’s employment was subsequently terminated.
The employee brought an application before the Ontario Labour Relations Board alleging employer reprisal under section 50 of Ontario’s Occupational Health and Safety Act (OHSA). Boston Pizza filed a motion to dismiss the application.
Boston Pizza took the position that the complaint by the employee didn’t involve any workplace health and safety issues and that, therefore, the employer reprisal provisions of OHSA didn’t apply. The employer’s argument relied on a series of cases including Conforti v. Investia Financial Services Inc.
In the Conforti case, the Board ruled that OHSA requires an employer only to put a workplace harassment policy and program in place and provide a worker with information and instruction, but it doesn’t actually require the employer to prevent harassment. On this basis, the Board in Conforti ruled that the employee’s assertion that she was fired for asking the employer to prevent harassment couldn’t engage OHSA, and this allegation couldn’t form the basis for a reprisal claim.
In the Ashworth case, the Board wasn’t persuaded that the case should be dismissed without further inquiry. Although the decision doesn’t expressly explain why the Board deviated from its previous decisions on this point, one possible reason may be that, if the allegations are true, the conduct of the manager went beyond the point of harassment.
Specifically, the Board may have considered the manager’s conduct to be tantamount to workplace violence. While OHSA doesn’t require that employers take reasonable steps to prevent workplace harassment, it does require that employers take steps to avoid workplace violence.
Significance of the decision
Many Canadian provinces have enacted specific provisions under their occupational health and safety legislation to address workplace harassment and violence. Since disagreements with management in the workplace can often lead to emotionally charged situations, it’s not surprising that many of those situations can ultimately lead to discipline or even dismissal of workers.
Given the existence of workplace harassment and violence provisions in such legislation, employees in some Canadian provinces may take the view that the discipline or termination constitutes an employer reprisal. The cases that have considered this issue have tended to view such situations as not being covered by health and safety legislation. This recent case suggests that the door may be opening on that view and, if the complaint in the Ashworth case is ultimately accepted, there may be more complaints arising from dismissal or discipline of workers in similar situations.
Rosalind is a partner with Fasken Martineau and has been named in Lexpert's The 2014 Guide to the 500 Leading Lawyers in Canada. She is listed in the Best Lawyers in Canada publication for environmental law, in Lexpert as most frequently recommended in the area of environmental law, in 2014 Who's Who Legal in environmental law and in the PLC Cross-Border Environment Handbook. Rosalind is also on the roster of mediators/arbitrators of the Canadian Centre for Environmental Arbitration and Mediation and is certified by the Law Society of Upper Canada as a specialist in environmental law. In the occupational health and safety area, Rosalind has been involved in defending charges, dealing with work refusals, appeals of orders issued by the Ministry of Labour and reprisal complaints. She has extensive experience in advising on reporting requirements, the various roles and responsibilities of workplace parties, director and officer liability for health and safety infractions, various aspects of due diligence, and health and safety audits and assessments.