Workplace Wire

In Davies v. Honda of Canada Mfg, the Ontario Labour Relations Board (“OLRB”) recently clarified what will not constitute acts of reprisal under s. 50 of the Occupational Health and Safety Act (“OHSA”).

An employee complained that he was not returned to work safely and consequently, faced a loss of work and income. The employee gave sixteen examples to demonstrate that the employer’s responses to his complaints about safety were reprisals. Ultimately, the OLRB dismissed fifteen of the sixteen allegations for failing to disclose a prima facie case of reprisal, sending the sixteenth on to a hearing on the merits.

Employers constantly face the risk of reprisal allegations by employees. However, employers can rest assured that not every response to requests about safety will amount to a prima facie case of reprisal: a threshold is required. An employee must allege the breach of a specific right in the OHSA and establish a nexus between that right and the employer’s alleged acts of reprisal. Disagreements about the duty to accommodate, for example, although related to workplace safety, do not amount to a prima facie case of reprisal.

The law on reprisals, generally speaking, is as follows: Reprisal is any employer action that threatens the job security of, disciplines, imposes a penalty on, or intimidates or coerces an employee for invoking his or her rights under the OHSA. The onus of proof lies with the employer when an employee complains to the OLRB, but only if the employee can demonstrate a prima facie case of reprisal. A prima facie case of reprisal is established when the underlying facts of the allegation, if true and provable, constitute a form of reprisal. For example, employers are required to give employees the requisite information and instruction regarding health and safety in the workplace. A prima facie case of reprisal would be established if an employee alleged that he was threatened with losing his or her job for demanding that the employer comply with the obligation to give the requisite information and instruction.

In Davies v. Honda of Canada Mfg, the OLRB found that the employee was either not seeking the enforcement of a right under the OHSA, or that there was no nexus between the employer’s alleged reprisals and the enforcement of such a right.

The OLRB went on to provide a helpful list to employers about what will not constitute a prima facie case of reprisal:

• Sending a letter stating that there is no suitable position for the employee’s medical restrictions and that the employee’s employment will be terminated if he does not participate in the Workplace Safety Insurance Board’s (WSIB) Work Transition program.
• Sending the employee home without pay when he refused to perform modified work. A dispute regarding what constitutes appropriate modified work does not amount to a form of reprisal. 
• Taking the position that the employee should not receive WSIB benefits. An employer has the right to object the employee’s eligibility to WSIB benefits.
• Requiring the employee to complete paperwork following an injury before attending the emergency room.
• Sending an e-mail between management to suggest discussing the employee’s concerns that the modified work is above his medical restrictions.
• Bald assertions that the employer’s physician uttered threats and was intimidating.
• Any action by WSIB personnel will not be considered an act of reprisal by the employer.

In the End, the OLRB found that one of the employee’s allegations constituted a prima facie case of reprisal. The fact that the employee was laid-off for six (6) days after contacting the Ministry of Labour regarding the alleged unsafe work conditions could potentially be a reprisal. The OLRB sent that allegation on to a hearing on the merits.