In a recent Ontario Labour Relations Board decision, the board determined that an employee had been terminated as reprisal for a harassment complaint following a four-month leave related to the COVID-19 pandemic.

Employee Terminated Following Complaint

 The employee began working for the employer on October 15, 2019 as a customer service and office support associate. She was hired on a twelve-month contract. The employer is a wholesale supplier of first aid products in Canada.

On March 11, 2020, an incident occurred at the workplace, following which the employee voiced her concerns about the owner with two managers. She claimed that the owner had slammed his fist in anger. She also reported that the owner used demeaning language to describe customers and employees. The employee expressed her concerns by email, part of which read as follows:

“Given today’s event, I do not feel safe at work.

Our owner’s use of demeaning and aggressive behaviour is absolutely unacceptable in the workplace.  As an employee I have a right to work in a safe environment. I also have a right as an employee to not feel bullied, intimidated or feel unsafe by any employee regardless of tenure.”

Despite receiving the employee’s complaint, the employer did not conduct an investigation into the matter.

On March 24, 2020, the employee advised the employer by email that she needed to take an emergency leave starting that day, given her understanding of the safeguards for the pandemic in light of her respiratory health. In her email she wrote she would tentatively return to work on April 7.

The employee returned to work on April 7 but began feeling unwell around noon. She was asked to leave the office, in part because of the health concerns surrounding the COVID-19 pandemic. The next day the employer arranged for a COVID test for the employee, which came back negative. The employer also required the employee to have her temperature taken, which did not indicate a fever. Nonetheless, the employee stayed home for two weeks out of precaution and told the employer she would follow up regarding her health on April 24 in view of returning to work.

However, when the employee advised the employer on April 24 that she was feeling better and was ready to return to work, she received the following email from the manager:

“Thank you for your email.  We are happy to hear that you are starting to feel better, however, as you can appreciate [the employer] has an obligation to protect the health and safety of all its staff.  Accordingly, as you had previously reported a respiratory illness it is in the best interest of all concerned that you remain on your leave of absence at this time and you should continue to receive government assistance”

Following the email, there was no further communication between the employee and the employer until August 16, when she asked the employer for her record of employment (“ROE”) in relation to her CERB benefits.

However, the employer did not respond to her request.

Instead, on August 19, 2020, the employer sent the employee a letter terminating her employment.  The reason for termination was stated in the first paragraph:

“During the past number of weeks, [the employer] has reassessed its business needs in a number of areas including staffing.  Unfortunately, at this time, business has slowed down and a decision was made to terminate your employment without cause effective immediately.”

The employee subsequently filed an application under s. 50 of the Occupational Health and Safety Act,(the “Act”), alleging an unlawful reprisal by the employer. The employee claimed that she had been laid off and then terminated from her employment as a consequence of invoking her rights under the Act. She submitted that there were a number of events that, when put together, created a reprisal. These included that there was no internal investigation, taking her temperature, placing her on leave, not providing the ROE in a timely fashion and ultimately her termination. She sought full back pay and $4,500 in general damages.

The employer conceded that the employee was acting in compliance with the Act when she made a complaint of workplace harassment on March 11, 2020.However, it submitted that her termination was for legitimate business reasons and there was no nexus between the employee’s complaint about the owner and the termination issued five months later. With regard to her allegations surrounding the COVID-19 pandemic, such as taking her temperature and asking her to stay home, it stated that none of its actions were reprisal for her complaint and that its conduct was a reasonable response to the particular circumstances, particularly given the early stages of the pandemic.

Labour Relations Board Finds Against Employer

At the outset, the Labour Relations Board found that the employeewas acting in compliance with the Act and/or seeking enforcement of the Act when she made her complaint about the owner’s conduct on March 11, 2020.

The board then turned to the main issue of determining whether there was a nexus between the employee’s termination and her complaint against the owner. The board noted that the onus fell on the employer to prove that its conduct did not constitute a reprisal for her complaint.

Ultimately, the board found that the employer had not met its burden, stating:

“[T]he Employer placed [the employee] on an indeterminate leave on April 24th after she had received a negative COVID result and had advised the Employer she was ready to return to work. While it was certainly within the range of reasonable decisions for the Employer to extend her leave on April 24th for some reasonable period of time as a precaution, I find it most unusual that there was absolutely no direction from the Employer concerning future contact and how or when she could return to work. The email keeping her on a leave of absence made it clear that it was “in the best interest of all concerned that you remain on your leave of absence at this time and you should continue to receive government assistance”.  Notwithstanding that the leave referred to “at this time”, the Employer gave [the employee] no direction about how or when the Employer expected to re-evaluate her situation and address her return to work. Given that she had already advised the Employer of her negative COVID results and her willingness to return to work, it seems highly unusual that there was absolutely no follow up by the Employer…. The Employer went out of its way to ensure the best interests of all concerned, but once [the employee] was out of sight, she was out of mind…. Although I do consider the initial decision to keep her on leave to have been reasonable, I am unable to find the same with respect to its length especially with no communication.”

Additionally, the board found that the quick timing of the employer’s decision to terminate did not seem reasonable. Furthermore, the board opined that the reasons given for the early termination of the employee’s contract were brief and there had been no detailed evidence provided to support the employer’s position that business had slowed down. Finally, the board rejected the employer’s submission that there was no nexus between the complaint and the termination due to the passage of time, stating:

“The five-month time period may possibly have been of some assistance to the Employer if [the employee] had been working throughout this entire period and then an early termination occurred. Here however there are no real intervening factors, and five months’ time alone does not convince me that there could be no nexus between the complaint and the termination.”

As a result, the board held that the employer’s termination of the employee was reprisal for her complaint. It awarded the employee past wages and $1,000 in general damages.

For Help

The Kitchener-Waterloo employment lawyers at Petker Campbell Postnikoff have many years of experience advising non-unionized employees and employers on a variety of workplace issues. Our team will walk you through the details of your dispute, advise you on your rights, responsibilities and obligations, and help you understand your options. If your dispute cannot be settled through negotiation, we can represent you through mediation and the court process.

We represent clients throughout southern Ontario, including the communities of Cambridge, Guelph, Elmira, Brantford, Fergus, Elora and the surrounding area. Call 519-886-1204 or contact us online for a consultation.