Workers Health & Safety Centre

OLRB reinstates worker fired in work refusal reprisal

OLRB reinstates worker fired in work refusal reprisal
The Ontario Labour Relations Board has ruled in favour of a worker who was fired in a reprisal for staging a health and safety work refusal.
On several occasions, the employer, Hotspot Auto Parts, asked the worker to lift loads of up to 150 or 200 pounds into a delivery truck. The worker raised concerns about the excessive loads and the employer responded by providing additional workers to help with the lift or by repackaging into lighter loads.
However, on February 23, 2012, when the worker was assigned to move nine, 100-pound loads of ball bearings, a work refusal resulted. Then, on March 1, 2012 the worker was given a four-day suspension for failing to report bald tires on a vehicle inspection form. On March 12, 2012, the worker’s hours were reduced without explanation and on March 13, 2012 he was terminated without explanation.
On April 18, 2012, the worker filed an application to the Ontario Labour Relations Board (OLRB) stating Hotspot Auto Parts breached section 50 of the Occupational Health and Safety Act (OSHA). He was represented by the Toronto Workers’ Health and Safety Legal Clinic at the Labour Board on August 10, 2012. The decision was dated November 19, 2012.
In Section-50 cases, a worker is required to show the OLRB that a legitimate health and safety activity (such as a refusal) occurred and that the worker subsequently suffered a penalty, such as discipline or termination. Both the worker and Hotspot Auto Parts confirmed both these facts in an agreed statement of facts.
Once the activity and penalty have been demonstrated, the onus switches to the employer to show that in the balance of probabilities the penalty was in no part a reprisal for health and safety activity. If the board finds the penalty was in any part a reprisal, the Board will find a breach of the OHSA, regardless of any other reasons that the employer may provide for the penalties.
At the OLRB hearing, Hotspot Auto Parts argued the termination was for failing to write the vehicle licence numbers and delivery dates on the vehicle inspection form and for failing to report bald tires. However, the worker testified the employer had said the licence numbers and delivery date sections of the form didn’t need to be completed and since the employer took over three weeks to replace the bald tires after they were reported, they could not have been such a significant issue as to merit termination.
Vice Chair Yasmeena Mohamed found that “the suspension and termination are severe and disproportionate to the alleged misconduct… [which] all appear to be minor transgressions.” The Vice-Chair found Hotspot Auto Parts failed to show the discipline and termination were unrelated to the work refusal and therefore found Hotspot Auto Parts in breach of Section-50 of the OHSA and reinstated the worker with back pay and damages to be determined.
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