OLRB Decision Supports Migrant Workers Silenced About Pandemic Danger

Written on behalf of Peter McSherry

Over the summer, there were several reports of COVID-19 outbreaks reported among migrant workers in Ontario, and particularly in the Southwestern region of the province. Workers reported a lack of support from employers, ranging from close quarters with other workers, a lack of safety equipment, and even insufficient necessities such as food. As a result, over 1,300 migrant workers in Ontario alone had tested positive for COVID-19, and three had died from complications.

Migrant Workers Faced Unsafe Living Quarters & Unsympathetic Employers

One of those who died was Juan Lopez Chaparro, a migrant worker from Mexico who had been employed by Scotlynn Sweetpac Growers Inc. (‘Scotlynn’) in southwestern Ontario. Chaparro, along with several other migrant workers, arrived for work on the farm in April, undergoing an immediate quarantine period as per government regulations. Following the quarantine, the workers were assigned living quarters consisting of bunkhouses divided into four apartments. Each apartment housed 13 people, with approximately 4 people sharing each bedroom. Residents said the living conditions were very poor, with unfinished walls, uncomfortable beds, and a lack of space. Workers were also unable to maintain a safe distance from one another, per health guidelines.

By early June, 190 migrant workers at Scotlynn had tested positive for COVID-19. As a result, all workers underwent a second quarantine period at a local hotel. One of the workers, Gabriel Flores, met a professor at Western University at the hotel by chance, and the professor introduced Flores to the Migrant Workers Alliance for Change (the ‘Alliance’). The Alliance is a non-profit organization dedicated to helping migrant workers who otherwise have little power in comparison to their employers.

When the workers returned to Scotlynn after the second quarantine, Chaparro became ill and Flores, who shared living quarters with Chaparro, informed supervisors about Chaparro’s condition. Chaparro was taken to hospital, where he died shortly afterward. The workers were called to a special meeting later that day to inform them about Chaparro’s death and answer their questions. After the meeting, Flores expressed anger that the employer had not been doing more to protect workers. The employer informed them they could take the following day off to mourn Chaparro if they wished.

The next day, the owner of Scotlynn, Robert Biddle, confronted Flores with a cellphone video that he claimed showed Flores participating in a media interview. There had been significant media attention on the farm due to the recent quarantine and high infection rate. Flores alleged he was told he was being sent back to Mexico in “the wee hours of the night”. It was later confirmed that Scotlynn had made travel arrangements to send Flores back home.

Dismissed for Allegedly Speaking Out About Safety Concerns

Flores was in touch with the professor he had met later that same day, and she arranged for him to be picked up from the farm and put him in touch with the Alliance. The Alliance arranged for legal representation, and Flores brought an application before the Ontario Labour Relations Board for unfair dismissal pursuant to s. 50(1) of the Occupational Health and Safety Act.

OLRB Alternate Chair Matthew Wilson found that there was a significant power imbalance inherent in the relationship between an employer and employee, especially when the employee is a migrant worker:

The power imbalance between the employer and Mr. Flores, as a migrant worker who does not speak English and relies on the employer for wages, shelter and transportation, should have been more carefully managed since a reprisal can strike a far deeper wound than might otherwise occur in the traditional employment relationship.  Mr. Flores was particularly vulnerable as a temporary worker from Mexico who did not speak the language.  He did not have access to the resources to minimize the pain and suffering, nor was he able to abate the injury suffered because of Scotlynn’s reaction to his objections about health and safety at the farm.

The OLRB found in favour of Mr. Flores, awarding him the following damages:

• $538.27 for lost wages;
• $16,811.81 for loss of future earnings;
• $2,654.50 for reasonable expectation of continued employment; and
• $5,000.00 for pain and suffering.

The threat of COVID-19 is ongoing, and employers have a duty to look out for the safety and wellbeing of their staff. If you are an employee concerned about safety in the workplace, contact the offices of Guelph employment lawyer Peter McSherry. We regularly assist employees with employment and labour issues. Contact us online or by phone at 519-821-5465 to schedule a consultation.