The Ontario Labour Relations Board (“OLRB”) recently held1 that an employee who was fired for complaining about aggressive clients is entitled to damages.
Abigail de los Santos Sands began working in human resources for Moneta Marketing Solutions Inc. (“Moneta”), an investment/ marketing company in September 2013. Throughout the course of her employment, Ms. de los Santos Sands felt threatened when dealing with irate and aggressive investors who attended Moneta’s office, and on two separate occasions tried to speak with her manager about her concerns and to suggest developing a process in human resources to address workplace violence and harassment complaints. On both occasions, Ms. de los Santos Sands’ concerns and suggestions were ignored and she was told that if she had time to complain about these issues, “she was not doing her job”.
As a result of this response, Ms. de los Santos Sands contacted the Ministry of Labour and disclosed that she felt threatened in her work environment and that there were no policies to address her concerns in the workplace. When the Ministry suggested that an inspector attend the workplace, Ms. de los Santos Sands refused out of fear of her employment being terminated. The Ministry nevertheless sent an Occupational Health and Safety inspector on January 20, 2014, when another Moneta employee contacted them with the same complaint. The inspector’s visit resulted in the issuance of compliance orders requiring the employer to prepare a workplace violence and harassment policy.
“Similarly, failing to address the concerns of a complainant by ignoring, discounting or coercing the removal of their complaint can amount to a violation of the OHSA.”
On January 21, 2014 – a day after the inspection – Ms. de los Santos Sands’ employment was terminated. When Ms. de los Santos Sands inquired as to why her employment came to an end, she was advised that “everything was fine up until the Ministry came in yesterday and…pushed them over the edge” and that as soon as the Ministry left, her termination was prepared.
Ms. de los Santos Sands decided to initiate a claim under section 50 of the Occupational Health and Safety Act (“OHSA”), alleging that her termination constituted a reprisal.
Section 50 of OHSA provides that:
No employer or person acting on behalf of an employer shall,
- dismiss or threaten to dismiss a worker
- discipline or suspend or threaten to discipline or suspend a worker;
- impose any penalty upon a worker; or
- intimidate or coerce a worker,
because the worker has acted in compliance with this Act or the regulations or an order made thereunder, has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act.
The OLRB, which heard the claim, accepted that Ms. de los Santos Sands did feel threatened by the “disgruntled and aggressive” clients; did bring it to the attention of her manager; and ultimately contacted the Ministry for the purposes of understanding her rights. In so doing, Ms. de lost Santos Sands had raised a health and safety concern with her employer and with the Ministry and sought to enforce the tenets of OHSA.
The OLRB also found that, in the absence of a response from Moneta, that Ms. de los Santos Sands’ termination was at least partly the result of her raising health and safety issues in the workplace and requesting that the employer prepare a formal policy on workplace harassment and violence.
Based on these findings, the OLRB held that the termination of Ms. de los Santos Sands’ employment was a reprisal. While normally the remedy for a reprisal would have been a reinstatement and the payment of lost wages, Ms. de los Santos did not wish to return to the workplace, and having mitigated her losses by finding alternate employment, she was given four weeks of wages.
Firing an employee for making a complaint amounts to Occupational Health and Safety Act violation
Lessons for Employers
- Automatic dismissal of an employee is never the answer to a complaint. We have written about cases where the immediate termination of an employee against whom a complaint is made (in order to avoid an investigation) proves to be a costly mistake. Similarly, failing to address the concerns of a complainant by ignoring, discounting or coercing the removal of their complaint can amount to a violation of the OHSA.
- Listen to your employees. Had Moneta taken Ms. de los Santos Sands’ concerns seriously, it may have been able to provide some form of defense to the allegation that her employment was terminated as a result of her complaint.Moreover, had it prepared and initiated an investigation under a policy on workplace harassment and violence, it may have alleviated the concerns of its employee(s) and avoided Ministry inspection altogether.
- Prepare and follow workplace harassment and violence policies. As the compliance order of the Ministry inspector shows in this case, failure to have a workplace harassment and violence policy can prove costly. Preparation of such a policy not only meets the legislative requirements of the OHSA, it also provides a useful roadmap for responding to complaints,which if consistently applied, can form a response to Ministry complaints and inspections.
- Be prepared to provide a legitimate explanation for termination. In some cases, the timing of a termination may be coincidental to an employee making a harassment complaint. If that is the case be prepared to show that the termination is unrelated and that there was no causal connection between it and the complaint.