A farmhand complained to his employer about the safety conditions at the farm, or workplace.

He did so shortly after a COVID outbreak at the farm, including the death of a co-worker related to the outbreak.

After raising these concerns, the employer told the farmhand that he would be shipped back to Mexico and bought him a plane ticket.

The employee ultimately stayed in Ontario, believing he had been fired.

Several months afterwards, the employer offered a return to work to the farmhand, but he refused.

The worker filed a complaint with the Ontario Labour Relations Board alleging he was fired for raising safety concerns. The employer said that the worker resigned, and he had exercised no protected rights under health and safety legislation.

The Board decided the worker was fired because he raised health and safety concerns. This was because the worker was fired the day after he raised the health and safety concerns and during a confrontation about the worker allegedly talking to the media.

The Board concluded that the farm had engaged in a prohibited reprisal under health and safety legislation. The Board said this reprisal was more serious because of the power imbalance between the farm and the seasonal worker. The worker did not speak English and relied on the farm for wages, shelter, and transportation. The Board ordered the farm to pay the worker more than $25,000 in damages for lost wages, loss of future earnings, and pain and suffering among other things.

The Board did not reduce the damages because the worker refused to accept re-employment. The Board said it was reasonable for the worker to refuse without assurances that the employer would correct issues or some proof that it had already done so.

What does this mean for employers? Health and safety concerns raised by workers about COVID-19 should be taken seriously, investigated, and, if necessary, remedial action taken to control the hazard.

This also reminds employers that workers cannot generally be threatened with or subject to a reprisal for the bona fide exercise of rights under health and safety legislation.

Workers can still be disciplined for misconduct unrelated to the bona fide exercise of health and safety rights under legislation. Where this misconduct occurs around the same time as an exercise of safety rights, employers should seek legal advice to ensure they do not inadvertently violate the reprisal protection of health and safety legislation. There is a reverse onus in a reprisal case. It is the employer’s burden to prove that a reprisal did not occur. This can be challenging in any case. It is particularly difficult in a case like this where there was conflicting testimony from witnesses, some of whom speak different languages, and little or no documentary evidence.

The Case:

Flores v Scotlynn Sweetpac Growers Inc., 2020 CanLII 88341 (ON LRB).

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