What is the remedy for a retaliatory discharge due to an employee raising a health and safety issue? Thompson v. 580062 Ontario Inc. (Slainte Irish Gastropub) provides the answer.
The Facts
Ms. Haley Thompson – a restaurant employee – arrived early so she could eat prior to the commencement of her shift. The owner and her employer, Mr. Ceppetelli, asked a co-worker to bring Ms. Thompson to him. When she met with him, Mr. Ceppetelli yelled at her, called her rude names, and used inappropriate language. When Ms. Thompson decided to leave the restaurant, Mr. Ceppetelli grabbed her arm and pushed her towards the door. Ms. Thompson was in a state of shock, and left the restaurant.
Ms. Thompson reported the incident to her manager before the work shift began. After assurance that Mr. Ceppetelli would not be there, Ms. Thompson decided to go back to the restaurant and complete her shift. When the next shift schedule was released, Ms. Thompson was not on it as Mr. Ceppetelli’s requested she be removed. Believing she was suspended, she wanted a detailed suspension letter. No such letter was ever received. Moreover, the employer never scheduled Ms. Thompson again.
Ms. Thompson reported the incident to the Ministry of Labour a few days later. She also complained of workplace violence and harassment to Mr. Ceppetelli and requested a copy of the employer’s formal policy on workplace violence and harassment.
Ms. Thompson subsequently filed an application pursuant to section 50 of the Occupational Health and Safety Act (“OHSA”).
Analysis:
Section 1(1) of the OHSA defines workplace violence as:
(a) The exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker,
(b) An attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker,
(c) A statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.
The language of the workplace violence definition is purposely made to be broad. The intent of this was to prevent or deter physically dangerous activity in the workplace. Even though Ms. Thompson was not physically injured after the altercation, the act of grabbing her arm and pushing her was deemed to be “the exercise of physical force by a person against a worker, in a workplace, that… could cause physical injury to the worker.”
The OHSA also stipulates that an employer must prepare a policy with respect to workplace violence. Ms. Thompson was entitled to request a copy of this policy from her employer, and was entitled to receive these documents under subsection 32.0.5(2) of the OHSA.
Ms. Thompson’s initial complaint to her manager, a further complaint to Mr. Ceppetelli, a request for the workplace violence policy, and a formal complaint to the Ministry of Labour, all constitute attempts to exercise her rights under the OHSA. By not scheduling Ms. Thompson after she exercised said rights, the employer’s actions violated section 50 of the OHSA. The presumptive remedy for a reprisal in violation of section 50 of the OHSA is reinstatement of the terminated employee and backpay from the date of the dismissal to the date of the reinstatement.
However, due to the workplace violence issues, Ms. Thompson and the Board both felt reinstatement was not viable. Instead Ms. Thompson was entitled to damages for loss of employment during the period she was not earning income.
Main Takeaway:
The presumptive remedy for a retaliatory discharge due to an employee exercising rights under the OHSA is reinstatement plus backpay from the date of the discharge to the date of the reinstatement.