Occupational health and safety legislation in most Canadian provinces prohibits reprisal by an employer against an employee who makes allegations of unsafe work. Workers routinely try to rely on such reprisal provisions to attack any actions of their employers.
A recent Ontario Labour Relations Board decision, Petro v. The Beer Store, confirms that workers can’t. Reprisal complaints must relate to health and safety matters. They can’t relate to failures to follow corporate reporting procedures or to threats of discipline for refusal to follow directions regarding workplace reporting protocols.
The worker, an employee of The Beer Store, was concerned about risk to her safety because of threatening conduct by a customer who frequented the location where she was employed. The worker felt that the response from management to her concerns was inadequate.
There were two reprisal allegations. The first was that when the worker contacted the president of The Beer Store about a violation of the Occupational Health and Safety Act (OHSA), she was disciplined and warned by the manager of employee relations that her employment would be terminated if she contacted him again. This was confirmed by a letter of discipline.
The second allegation was that the worker had been suspended for two days as a reprisal for having raised health and safety concerns with the manager of corporate health and safety. The Beer Store denied the allegations contained within the application and requested that the application be dismissed on a preliminary basis on several grounds.
Jurisdiction of board on reprisal complaints
At issue was Section 50 of the Ontario OHSA, the reprisal provision. The Board indicated that Subsection 50(1) of the OHSA is limited to adjudicating complaints that a worker has suffered reprisals because the worker has acted in compliance with or sought enforcement of the OHSA or its regulations. Subsection 50(1) is not a “mechanism by which an individual can complain to the Board about any concern regarding her treatment in the workplace.”
The Board acknowledged that an individual may have serious and legitimate concerns that arise from certain workplace events or incidents. However, unless those concerns arise in the context of the OHSA, the Board is unable to address those matters.
Choice of forum for complaints
Subsection 50(2) of the OHSA provides unionized workers with two options to deal with reprisals. One is to have the matter dealt with by final and binding settlement arbitration under a collective agreement, and the second is to file a complaint with the Board. In this case, the worker had chosen to proceed with a grievance under her collective agreement in respect of the second reprisal complaint, which was the two-day disciplinary suspension. The Board said that, as a result, she had no ability to file a complaint with the Board in respect of that discipline.
Reprisal must be for health and safety issues
The Board went further, however, and said that an application can’t proceed on the basis of a “threat” in respect of discipline and that there must be actual discipline. In addition, the Board referred to previous decisions where a distinction was made between a worker’s right to seek enforcement of his or her rights under the OHSA and a worker’s refusal to follow directions for enforcing those rights.
The Board said that discipline or a warning of discipline for failing to follow a direction is not a reprisal under the OHSA. Therefore a warning of discipline for refusal to follow a direction regarding workplace reporting protocols doesn’t constitute a reprisal. It appears that the Board’s decision turned on the fact that the alleged reprisals by the employer related to the worker’s failure to follow proper reporting procedures and not in relation to the complaints themselves.
The decision confirms that complaints regarding reprisals must relate specifically to health and safety matters and not other matters such as failing to following corporate reporting procedures. Further, threats of discipline for refusal to follow directions regarding workplace reporting protocols won’t constitute a reprisal. Given that many jurisdictions across Canada have similarly worded reprisal provisions, this decision may be applied broadly throughout the country. This is good news for Canadian employers.