Worker’s firing was because of health and safety complaint, not fights in the workplace: Court

Photo: Charl Folscher

An Ontario court has upheld damages awarded to a worker who got into multiple fights in his workplace and complained about unsafe working conditions.

Michael Pereira worked for Cambridge Pallet as a general labourer in its warehouse in Cambridge, Ont. He was hired on Sept. 17, 2018.

The first fight

On April 4, 2019, he was involved in a fight in the workplace with another employee. He was given a notice if discipline/letter of concern indicating he had violated the company’s Violence & Harassment in the Workplace Policy. He was suspended for one day.

The notice included a provision indicating that “further issues relating to this matter may result in additional discipline up to and including termination of employment.”

The second fight

On Feb. 13, 2020, Pereira was involved in a second workplace altercation with a different employee. He was again provided with a letter and this time suspended for two days.

This notice once again advised that: “Going forward any future incidents will be subject to further disciplinary action up to and including possible termination.”

It indicated that he was to return to work on his regularly scheduled shift on Feb.19.

Health and safety complaint

During his suspension, Pereira sent a number of text messages to Cambridge’s operations manager and director, Jorge Meneses, indicating that he felt his suspension was not warranted and complaining about unsafe working conditions including black mould, fungi, rodents, and mushrooms on rotting boards.

He said if the safety concerns were not addressed, he would contact the Ministry of Labour. Meneses did not respond to his complaints, and Pereira contacted the Ministry.

In addition to that, Pereira filed a complaint (on Feb. 18, during his suspension) with the Ministry of Labour seeking compensation for the two days he was suspended without pay.

On Feb. 19, he returned to work as scheduled but was promptly fired. He was given severance pay and a termination letter that stated, in part, the following:

“This letter is to provide you with official notice that effective immediately your employment at Cambridge Pallet Ltd. has been terminated.

“A copy of your Record of Employment will be forwarded to the address you provided. All wages/severance owed will be paid/deposited as per usual payroll.”

After being fired, Pereira added to his Ministry of Labour complaint an allegation that his termination was reprisal for raising health and safety concerns in the workplace.

Initial claim rejected

On May 19, 2020, his claim was rejected by an employment standards officer. That officer found the termination was not a reprisal for the health and safety complaint but rather for “willful misconduct” related to breaches of the company’s violence and harassment policies for the fights. Simply put, Pereira should have known that the second incident would result in his immediate dismissal.

Worker appeals

Pereira appealed that rejection to the Ontario Labour Relations Board.

The board ruled in the worker’s favour, finding the termination was a result of the health and safety complaint to the Ministry of Labour.

One of the reasons cited was the employer’s decision to suspend Pereira for two days following the second incident and not immediately fire him. At that point, he was again warned that future incidents would be subject to disciplinary action, up to and including possible termination.

Further, when he was let go, he was not told the reason for his dismissal was his violent behaviour – he was simply told that “things were not working out and we are going to let you go.” His termination letter did not indicate termination was for cause, and he was given severance pay.

The board said that at some point during the start of the two-day suspension and his return to work, the suspension became a termination of employment.

The close connection in time between the exercise of the health and safety right and the adverse consequence gave rise to a “heavy onus” on the employer to prove there was no connection.

Damages awarded

The employer did not satisfy that onus, it said. Pereira was awarded the following in compensation:

  • $45,287.55 for loss of earnings (63 weeks at an average weekly wage of $718.85)
  • $2,875.40 for loss of reasonable expectation of continued employment (four weeks’ pay)
  • $1,500 for pain and suffering
  • $849.14 in pre-judgment interest.

Cambridge Pallets appealed that decision to the Ontario Superior Court of Justice.

The court said the board was clear in its reasoning.

“The Board was well aware of and gave full consideration to the two incidents of workplace violence,” Justice Gordon wrote in the ruling. “However, it found that that the discipline imposed as a result of those incidents were short suspensions and not termination of employment. Given that the discipline notices given to Mr. Pereira were specific in this regard that finding is hardly surprising.”

Since nothing happened in between the second incident, which warned of further discipline for another event, and termination of employment it was “reasonable” to conclude the dismissal was related “at least in part” to the health and safety complaint.

For more information see Cambridge Pallet Ltd. v. Pereira, 2022 ONSC 3213 (CanLII)

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