Canadian Safety Reporter

2 Canadian HR Reporter, a Thomson Reuters business 2016 CSR | January 2016 | News Some of the boxes Le had to carry were heavy, up to 60 pounds each, according to Le. They were also large enough that they blocked his vision when he carried them, which was trou- blesome since he often had to carry them upstairs to the facil- ity's second level. In March 2015, Le began ex- periencing pain in his knees. He felt the pain was being caused by carrying heavy boxes between floors at the Safecross facility and the repetitive nature of nu- merous trips up and down the stairs during the workday. He told his supervisor about his pain and said he couldn't contin- ue to carry boxes between levels. Le and his supervisor had dif- fering accounts of the supervi- sor's response. Le claimed the supervisor dismissed his con- cerns by telling Le he needed the money and should get on with his work. The supervisor said he relieved Le of the responsibil- ity for carrying boxes between levels and later testified he had arranged for other workers to assist Le, but Le denied this was the case and that he was required to continue carrying heavy and cumbersome boxes up the stairs. He also claimed he consulted his department's health and safety representative, but nothing came of it. Rumours of staged workplace accident On July 22, 2015, Safecross gave Le a disciplinary warning which was identified as a "final written warning." The warning was re- lated to a request Le had made earlier in the year to lay him off so he could collect employment insurance benefits and pursue his education. Safecross had re- fused the request, as the compa- ny felt it had been accommodat- ing Le's attempts to take courses on his own. The same day, Le talked to an- other manager and complained that he was being required to carry cabinets up the stairs. He said the cabinets were too heavy, the work was dangerous, and he had the right to refuse to do the work. He also asked the man- ager to direct his supervisor to stop assigning such work to him, but the manager simply said he would think about it without giv- ing a definitive answer. Safecross had become aware of rumours in the wake of its refusal of his layoff request that Le was telling co-workers he was planning on staging an accident in order to claim workers' com- pensation benefits. This was particularly concerning for Safe- cross as Le had seemed to be- come "complacent" and he had made several errors since the re- fusal. In the final written warn- ing, Safecross cautioned that such conduct "is a risk to your- self and to other employees and will not be tolerated." It went on to warn Le he should follow con- duct guidelines in the employee handbook and "further infrac- tions will result in disciplinary action including termination." The final written warning was a departure from Safecross' nor- mal disciplinary process. Le had a clean disciplinary record since his employment started some ten months earlier and Safecross had a progressive discipline sys- tem that allowed for a verbal warning, a first written warning, and a second written warning, before getting to the point where a final written warning was usu- ally given. The final written warning was the last step before dismissal. The next day, July 23, Le's su- pervisor noticed Le didn't seem focused on his work and was "not doing what he would normally be doing." Concerned this was related to the rumours that Le was going to stage an accident, the supervisor contacted Le ear- ly in his shift and terminated his employment immediately, say- ing Le was "too weak" and could not live up to the demands of the job when things got busier over the next month. Le didn't receive a termination letter. Le filed a complaint with the Ontario Labour Relations Board, alleging his termination was a reprisal for his safety complaint regarding his carrying of heavy and difficult-to-handle boxes — such reprisals violated the On- tario Occupational Health and Safety Act, which prohibits em- ployers from dismissing, threat- ening to dismiss, or intimidating a worker because the worker has acted in compliance with the act. He sought reinstatement as well as "general damages for the humiliation, hurt, harm, and mental anguish" he claimed to have suffered as a result of the dismissal. The board found there was no dispute that Le had complained about the process he was re- quired to follow and the effect it was having on him and his knees, as well as the safety risk when his vision was impaired by what he was carrying up the stairs. The supervisor's claim that he relieved Le of those du- ties and arranged for others to help him showed Safecross was aware of Le's concerns in March 2015 and when Le brought it to a manager's attention in July, the company had been "on notice" of the issue for four months. The board also found the ter- mination of Le's employment was an adverse impact that could potentially be considered a re- prisal under the act, so Safecross had a reverse onus to prove there was no reprisal. Le was given a final written warning on July 22, which established that Safecross felt Le's alleged plans to fake a workplace accident were worthy of such a warning but termina- tion would arise only for "further infractions." However, nothing changed between the issuance of the final written warning and the next day when Le was dismissed — except for Le's complaint to the manager about his safety concerns. The only justification for the decision to dismiss Le on July 23 was that the supervisor noticed Le was be- having differently and assumed Le was going to confirm the ru- mours the company had heard that day. This "cannot possibly be accepted as sufficient to establish the 'further infractions' that the final written warning contem- plated as the condition precedent to 'disciplinary action including termination,'" said the board. Without any further infrac- tions, the board found "there must have been another spark to set off the termination process" — which it determined to be Le's complaint to the manager. Safe- cross didn't provide any compel- ling evidence that there was any further infraction other than Le's complaint on July 23, so it found Le's dismissal was a reprisal for his safety complaint. Safecross was ordered to re- instate Le with compensation for wages lost since his termina- tion. Le provided no evidence of the "humiliation, hurt, harm and mental anguish" he referred to in his complaint, so the board de- nied him any entitlement to ad- ditional damages. For more information see: • Le v. Safecross First Aid Ltd., 2015 CarswellOnt 17118 (Ont. Lab. Rel. Bd.). Dismissal< pg. 1 No misconduct between final warning and dismissal Credit: Shutterstock

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