An employee has won a reinstatement order under the Occupational Health and Safety Act after the Ontario Labour Relations Board held that he was fired for raising safety issues.

The employee complained to a company representative that carrying boxes up and down stairs caused him to suffer knee pain and was dangerous because certain loads he was carrying obstructed his view.  The next day, he was fired.

The employer’s evidence at the hearing, that the employee was dismissed because he was “not himself”, was “complacent” and was “not doing what he normally would be doing” and was “entrenched in what he was doing next” did not possibly establish a basis for termination. As such, the OLRB decided that there must have been another “spark” that set off the termination process, and the only other event was the employee’s safety complaint the day before he was fired.

Importantly, the company representative who received the employee’s safety complaint did not testify at the hearing. Therefore, the OLRB accepted the employee’s evidence that he had made the safety complaint.

Interestingly, the OLRB held that the employee had never seen a “final written warning” that the employer said they gave to him the day before his termination.  The final written warning actually hurt the employer’s case because it demonstrated that the employer believed, before the employee made the safety complaint, that a warning – not termination – was appropriate discipline.  As such, it must have been the safety complaint that led to termination.

The OLRB ordered the employer to reinstate the employee and compensate him for his lost wages from his dismissal to his reinstatement date.

Le v Safecross First Aid Limited, 2015 CanLII 72242 (ON LRB)