[author: Adrian Miedema]
Employees won only 2 of 17 reported Occupational Health and Safety Act reprisal cases decided by the Ontario Labour Relations Board in 2011. Employers won the other 15.
The results appear surprising given that when employers think about safety-reprisal cases, they often think about the reverse onus: to win, the employer must prove that any safety issue raised by the employee had nothing to do with any discipline imposed on the employee.
An additional 27 reprisal complaints were reported settled and withdrawn, for a settlement rate of 61%.
In one of the cases in which the employee succeeded, the employee’s hours were crossed off of a work schedule posted the day after she expressed concern about working in front of a recently installed microwave, saying it was dangerous. In the other successful case, the employee refused to paint because his mask had deteriorated and the replacement mask had not yet arrived; the employer then gave him a 10-day suspension.
In a number of the 15 reprisal complaints that were dismissed, the complaint had nothing to do with the Occupational Health and Safety Act, and the employee had not even alleged that he or she had made a complaint related to a protected safety right under that Act.
The results suggest that many employees are using the safety-reprisal complaint process to try to deal with workplace issues that are unrelated to safety. That is, many employees may not understand that in order to advance a safety-reprisal complaint, the employee must have raised a safety issue for which he or she claims to have suffered reprisal. Employees’ poor success rate on these cases gives employers more leverage to resolve unsubstantiated complaints in a favourable manner, or at least have the complaints transferred to a more appropriate forum.