A recent decision1 of the Ontario Labour Relations Board reminds employers that health and safety concerns raised by workers about COVID-19 should be taken seriously, investigated, and, if necessary, remedial action taken to control the hazard. It also reminds employers that workers cannot generally be threatened with or subject to a reprisal for the bona fide exercise of rights under health and safety legislation.
An Ontario farm hired seasonal workers from Mexico every year. This year the workers were quarantined for 14 days after arriving in Canada because of the pandemic. After quarantine, the workers lived in bunkhouses on the farm. The bunkhouses were divided into four apartments where 13 people lived. In at least one apartment, there were shared bedrooms and bathrooms.
There was a COVID-19 outbreak at the farm. One worker died. After the death, one worker told a supervisor that the farm needed to take better care of the workers. The following day, the former owner allegedly confronted the worker and accused him of talking to the media about the farm and his concerns. The former owner told the worker he was being sent back to Mexico. The farm booked and paid for a flight to Mexico. The worker left the farm understanding that he had been fired but he remained in Ontario. A few months later, the farm offered to return the worker to work but the worker refused.
The worker filed a complaint with the Ontario Labour Relations Board alleging he was fired for raising safety concerns. The employer said that the worker resigned, and he had exercised no protected rights under health and safety legislation.
What Did the Board Decide?
The Board decided the worker had engaged in protected activity under health and safety legislation. The worker spoke out about working and living conditions and about his concerns about COVID-19. He did this to get the farm to improve workplace conditions. The Board said this indirectly invoked the employer's duty to take every reasonable precaution in the circumstance to protect the health and safety of workers.
The Board decided the worker had been fired when he was told he was being sent back to Mexico. The farm had unilaterally booked and paid for his return flight to Mexico. This was only done if a worker was terminated or ill. The Board decided the worker was fired because he raised health and safety concerns. This was because the worker was fired the day after he raised the health and safety concerns and during a confrontation about the worker allegedly talking to the media.
The Board concluded that the farm had engaged in a prohibited reprisal under health and safety legislation. The Board said this reprisal was more serious because of the power imbalance between the farm and the seasonal worker. The worker did not speak English and relied on the farm for wages, shelter, and transportation. The Board ordered the farm to pay the worker more than $25,000 in damages for lost wages, loss of future earnings, and pain and suffering among other things. The Board did not reduce the damages because the worker refused to accept re-employment. The Board said it was reasonable for the worker to refuse without assurances that the employer would correct issues or some proof that it had already done so.
Takeaways for Employers
This decision reminds employers that workers have a right to raise health and safety concerns. As the Board said, "no magic words" are required to engage this protected right. When health and safety concerns are raised by workers, they should be taken seriously by employers, investigated, and, if necessary, remedial action taken to control the hazard. It is prohibited to threaten to or engage in a reprisal against a worker for exercising this or other rights under health and safety legislation.
Workers can still be disciplined for misconduct unrelated to the bona fide exercise of health and safety rights under legislation. Where this misconduct occurs around the same time as an exercise of safety rights, employers should seek legal advice to ensure they do not inadvertently violate the reprisal protection of health and safety legislation. There is a reverse onus in a reprisal case. It is the employer's burden to prove that a reprisal did not occur. This can be challenging in any case. It is particularly difficult in a case like this where there was conflicting testimony from witnesses, some of whom speak different languages, and little or no documentary evidence.
1 Flores v Scotlynn Sweetpac Growers Inc., 2020 CanLII 88341 (ON LRB).
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