'The onus is on the employer to prove that it didn't reprise against the employee': lawyer
The dismissal of a worker shortly after he raised two health and safety concerns wasn’t a reprisal, the Ontario Labour Relations Board has ruled.
Voestalpine Rotec North America (VRNA) is an automotive parts manufacturer in Burlington, Ont., that supplies tubular components and assemblies for passenger airbags. The company’s manufacturing facility was highly automated with robots performing tasks such as welding and laser cutting.
Given the nature of the operations, VRNA held monthly town hall meetings with employees for open discussions on safety and key metrics. Employees could raise health and safety issues to be addressed in the meetings either anonymously in advance or in person at the meetings.
VRNA’s safety process was well-thought out and developed, particularly given the safety-sensitive nature of its business, says Nhi Huynh, an employment lawyer with Williams HR Law in the Greater Toronto Area.
“They took steps to build a culture of a healthy and safe work environment by inviting monthly feedback about safety,” she says. “You want to be proactive and you also want to catch things as soon as possible, and by inviting this feedback, that allows the employer to hear directly from the those on the ground things that they might not have noticed themselves and take care of it as soon as possible.”
Performance concerns
The worker started employment with VRNA in March 2023 as a licensed millwright. During his time with VRNA, he had no formal performance reviews.
However, according to the plant manager, the worker often took too long to complete work assignments and wasn’t meeting the specifications of his position. On Oct. 17, VRNA’s technical manager emailed the plant manager and the HR manager indicating that he wanted to replace the worker with a new certified millwright. The same day, VRNA posted an advertisement on a job search board for a replacement millwright.
On Nov. 22, the technical manager received approval to interview a candidate for the position.
It may not always be a good idea to search for a replacement before giving an employee notice of termination, according to Huynh.
“If the employee realizes that the employer is trying to replace them, they could say that they've been constructively dismissed,” she says. “In different cases, an employee certainly has that venue to take if they feel that they're being pushed out, but it depends on the circumstances - if you continuously hire for that type of position, it might not look like you're trying to replace an employee if there are multiple positions available.”
Health and safety concerns
On Nov. 23, the worker raised two health and safety issues in a town hall meeting. One was related to noise levels in the plant and the other about air quality. The plant manager thanked the worker and told him they would look into both issues immediately.
The plant’s health and safety co-ordinator spoke to the plant manager after the meeting and reviewed the most recent air quality report with him. They agreed that it was time for a new air quality test by an external company, as the previous one had been nearly four years earlier. They also checked the noise levels in the plant, finding them to be at 70 decibels – hearing protection was mandatory at 90 decibels.
The health and safety co-ordinator met with the worker soon after and showed him a safety date sheet from the manufacturer of the primary chemical used in the manufacturing process. He also showed a 2019 report indicating that the chemical product was 92 per cent diluted, so most of the vapour was water vapour that dissipated quickly and wasn’t harmful. According to the co-ordinator, the worker was satisfied with their response to his concerns and was pleased that another air quality test was being performed.
However, the worker claimed that he didn’t feel the 2019 report was accurate.
On Dec. 11, VRNA terminated the worker’s employment for not meeting expectations. After his termination, the worker called the Ontario Ministry of Labour to complain about safety issues at the plant. A ministry inspector checked the noise levels of the plant and found them to be acceptable.
Worker alleged reprisal
The worker then filed an application with the board alleging that his termination was an unlawful reprisal for him raising health and safety concerns at the town hall meeting, contrary to s. 50 of the Ontario Occupational Health and Safety Act (OHSA). VRNA maintained that the worker was terminated for performance-related issues, which had been discussed before the town hall meeting.
The board noted that s. 50 of the OHSA prohibited dismissal or discipline – or threats of either – of a worker because the worker acted in compliance with the act or its regulations. For there to be an unlawful reprisal, there must be a causal connection between the reprisal and the worker’s exercise of rights under the OHSA, the board said.
The board found that management communications before the town hall meeting showed that there was a desire to terminate the worker’s employment and find a replacement. This was evident from emails and the fact that an advertisement for the position and an interview with a candidate was approved before the worker raised the safety issues, said the board, noting that “the wheels were set in motion” prior to the town hall meeting.
The board also found that VRNA took the worker’s safety concerns seriously and acted quickly to address them – first by discussing the issues, then talking to the worker and scheduling an air quality assessment by an outside company. These actions were consistent with VRNA’s position that it encouraged employees to raise health and safety concerns, said the board.
The board determined that the worker’s termination was not a reprisal or in any way connected to his exercising of his rights under the OHSA and dismissed his application.
Documentation of performance
VRNA was a bit lucky it had internal emails discussing the worker’s performance, as it didn’t seem to have much else in terms of documenting performance issues, says Huynh.
“That bit of documentation showed that the dismissal decision didn't relate to the worker's complaint of health and safety, but it could have been a different result,” she says. “At the end of the day, the onus is on the employer to prove that it didn't reprise against the employee – it’s hard to prove what you didn't do, but it's better to prove what you did do properly with proper documentation.”
The company also helped its case by taking immediate steps to address the worker’s safety concerns, adds Huynh.
“They really wanted to normalize people bringing these types of issues to their attention and not just paying lip service but actually taking steps to address these concerns,” she says. “And I think that was helpful to show that it the decision to dismiss really wasn't related to the worker's complaint.”
However, Huynh notes that employers should be more mindful about the timing of a dismissal.
“Sometimes optics are very important, so if an employee is dismissed very soon after they make a health and safety complaint, that’s going to give the appearance of a reprisal,” she says. “Not all employers have the best documentation, so they should be mindful of the timing, because it can really make a difference in terms of what an employee might think is the reason why they're being dismissed.”
See Robert Kay v. Voestalpine Rotec North America Corp, 2024 CanLII 74844.
