The Ontario Labour Relations Board (OLRB) has ordered a charity in Ottawa to pay a former employee more than $15,000 in damages after they terminated her shortly after she identified some safety concerns. The OLRB found that the employer’s actions constituted a reprisal for the employee’s attempt to exercise her workplace rights, namely her right to refuse unsafe work under the Occupational Health and Safety Act (OHSA).
The Workplace Parties
The employer, the Society of St. Vincent de Paul, is a Roman Catholic charitable organization comprised of three locations in Ottawa, Ontario. Its mission is to help the poor and less fortunate in society, through, among other things, operating thrift stores where they sell donated goods (furniture, housewares, clothing, etc.). Money earned through retail sales covers the Society’s business expenses, including salaries for the approximately 50 full-time employees who work there.
The employee in question worked as the Supervisor of the Book room, which was located in the basement of one of the retail locations. She was responsible for sorting, assessing, organizing, and pricing all books donated to the store, and supervising other employees in the book room.
The employee had been concerned about the basement’s air quality since she started working for the Society in 2011. She had raised the issue with her supervisors several times, and requested to have the air quality tested. However, no testing was ever undertaken. The employee had also stopped using the buildings elevator after a sewer leak had left a permanent odor there, and instead, used the stairs to transport books from the basement to the main retail section of the store.
The employee became quite active in promoting health and safety in the workplace. She eventually contacted the Ministry of Labour (MOL) in spring of 2015 to complain about the conditions in the basement. She participated in the MOL’s investigations of the facility and joined the Joint Occupational Health and Safety Committee that was formed.
In October 2015, the Society received a donation of 30 boxes of books. The employee was advised that she had to sort the books by herself, and that her usual helper was being reassigned. The employee refused, telling the Society that the work was unsafe and could not be done on her own without the help she had received in the past, and that she would contact the MOL if she was required to process the books on her own.
In response, the employee’s manager issued her a letter of discipline.
The employee then met with the Society’s Executive Director, who told her that if she felt that the work she was being asked to do was unsafe, then she should just “quit”. The following day, all employees were called to a general meeting in which they were informed that the book department would be amalgamating with the houseware department under the guidance of a single supervisor (no longer the employee). The employee was essentially demoted.
About one month after this meeting, the employee was terminated, ostensibly due to “restructuring”, and escorted off the premises.
She filed a complaint alleging breach of section 50 of the OHSA, claiming that her termination was motivated, in part, by her work refusal, and citing reprisal.
Despite the Society’s position that the employee had been terminated for no other reason than internal restructuring, the OLRB found that she had been reprised against in that her termination had been motivated, in part, on the basis that she had exercised her rights under the OHSA in the weeks leading to her termination. The employee had a valid right to refuse to unload the large shipment of books on her own, as the OHSA statutorily protects a worker’s right to refuse unsafe work.
Vice-Chair Kuttner stated:
Here, it is absolutely clear that on November 10, 2015, the day that Mr. Strate presented the applicant with her letter of termination, he was aware of her several attempts to exercise her rights under the Act. In his testimony, Mr. Strate admitted: that it was “common knowledge” that the applicant was involved in OSHA”; that the applicant had spoken with the Inspector during his September visits to the enterprise; that the applicant had been instrumental in having a worker member elected to the JHSC, and shortly afterward had herself been elected as employee representative on the Committee — the lynch-pin of the joint responsibility principle which informs the Act;— and he was aware that the applicant had refused to perform unsafe work on October 8, 2015 for which she was improperly disciplined.
Any one of these admissions would have called into doubt the ostensible reason for terminating the applicant — a restructuring of the workplace. This is especially so given that Mr. Strate admitted that the restructuring of the enterprise would actually entail an expansion of its facilities requiring the hiring of additional employees. The cumulative effect of these admissions made by Mr. Strate in the course of his testimony, leaves no doubt in my mind that in terminating Ms. Podobnik on November 10, 2015, the Society engaged in reprisal misconduct…
The employee was ultimately awarded damages totalling $15,062.00, including amounts for lost wages, commission, benefits, and value of the job. The award included $3,500 for emotional pain and suffering, including her very public demotion in front of colleagues prior to the termination.
If you are an employee and have questions about wrongful dismissal or your rights in the workplace, including your right to refuse unsafe work, contact Peter McSherry by phone at 519-821-5465 or by e-mail to schedule a consultation today. I can protect your rights, advocate for your best interests with employers, and ensure your case is handled properly and efficiently for a fair settlement.