Reinstatement “Presumptive Remedy” for Retaliatory Dismissal under Occupational Health and Safety Act

Written on behalf of Peter McSherry

In the recent case Thompson v. 580062 Ontario Inc. (Stainte Irish Gastropub), 2015 CanLII 76907 (ON LRB) [Thompson], the Ontario Labour Relations Board confirmed that an employee discharged for raising safety concerns in the workplace will generally be entitled to reinstatement.

In Thompson, a restaurant employee was called into the owner’s office, where the owner proceeded to swear at her and demand that she “get the f**k out.” While the employee, Haley Thompson, was in the process of leaving, the restaurant’s owner “grabbed her arm and pulled and pushed her towards the door.” In response, Thompson reported the workplace harassment incident to her manager, asked to be provided with the company’s harassment policy and reported the events to the Ministry of Labour. Following the incident, Thompson was removed from the restaurant’s work schedule. Despite repeated requests, Thompson was never included in the restaurant’s schedule again.

Following these events, Thompson filed a reprisal complaint under the Occupational Health and Safety Act with the Ontario Labour Relations Board. The employer did not attend the hearing. In the absence of an explanation by the employer, the Ontario Labour Relations Board was satisfied that at least part of the employer’s reason for ceasing to schedule Thompson was because she had raised health and safety issues in the workplace. Regarding the appropriate remedy in the circumstances, Vice-Chair Roslyn McGilvery wrote in her decision:

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.

However, given the circumstances, Thompson did not wish to return to the restaurant. In place of reinstatement, the Board found Thompson was entitled to damages for loss of employment and loss of wages.

If you believe you have been subject to workplace violence or harassment, or that your employer has committed a reprisal against you for attempting to enforce your rights under the Occupational Health and Safety Act, contact employment lawyer Peter McSherry online or at 519-821-5465.

To read the full decision, click here.