In Ontario, employees are given protection for making a complaint about safety issues and conditions in the workplace. For example, the Occupational Health and Safety Act of Ontario contains a reprisal section, effectively meaning that an employee cannot be terminated for making a complaint about a safety issue in the workplace. Similarly, for example, the Employment Standards Act, 2000 of Ontario has a reprisal provision protecting employees from termination if they complain that their rights under that employment statute are not being followed by the employer.
A recent case in point: Leverton v. Roberts Onsite Inc. (2015 CanLII 80170 Ont. Small Claims)
An employee, who worked for an electrical contractor that did work in schools, complained to the MOL that electrical panels in certain schools had been wired incorrectly. He saw it as a safety concern. An MOL inspector investigated and found no safety concerns.
The employee was eventually fired, and he sued in the Small Claims Court for wrongful dismissal. The employer counterclaimed against him for allegedly filing a false safety complaint with the Ministry of Labour, costing the employer money to deal with the fallout from the MOL investigation.
In dismissing the employers counterclaim, the deputy judge stated:
Moreover, I take judicial notice of the fact that the Ministry of Labour Health and Safety Contact Centre is set up by the province to permit reporting of, among other things, unsafe working conditions. It would be the worst kind of public policy to encourage people to report unsafe working conditions and then hold them liable in tort if it is determined that the conditions do not fall below the safety standards applied by the Ministry. Reporting to a government safety authority what is honestly believed by the reporter to be unsafe working conditions should enjoy a qualified immunity from tort liability except in cases of total fabrication or perhaps completely unreasonable opinions about safety. No such immunity is required in this case to defend against the Defendants Claim however, because all the grounds of liability pleaded by the Defendant require that the report be false.
Further, the employer had not proven any damages. The employers claim for damages for hours spent by its employees dealing with the MOL after the complaint was rejected, with the deputy judge calling one piece of the employers evidence regarding its damages, exaggerated, fanciful, if not downright false.
In this case, the employer tactically made the error of counter suing the employee for making a complaint, even though the MOL determined there was no safety issue.
This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.
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