A mechanic from Mexico who was fired after he resisted a demand for repayment of a portion of his wages, and was threatened with deportation, has been awarded more than $60,000 after the Ontario Labour Relations Board (OLRB) ruled his employer engaged in unlawful reprisal.
The board found that Niva Services, which is in the business of repairing and maintaining diesel trucks and trailers, violated section 74 of the Employment Standards Act, 2000.
The case centred around the worker’s claim that Niva Services had wrongfully demanded repayment of a portion of his wages and subsequently terminated his employment when he resisted.
The background
The worker, a mechanic recruited from Mexico, was hired by Niva Services under a contract promising $29.50 per hour for 40 hours a week, with overtime at $44.25 per hour.
The company’s president testified that finding qualified, licensed mechanics in Canada can be very difficult — and, as a result, it sometimes recruits talent from other countries.
Shortly after starting work, he fell ill and was absent for two weeks.
“(He) got sick after about the first three days at work, and as this was in the period of the COVID-19 health crisis, he stayed home,” the ruling stated. “He was told not to report to work until he could prove that he did not have COVID-19. His illness lasted about two weeks.”
Upon his return, he faced demands from his supervisor and an office worker to return part of his wages due to perceived underperformance.
The board’s decision highlighted the coercive tactics used by Niva Services. The worker, and one of his colleagues, testified that they were threatened with termination and deportation if they did not comply with the demands. This was corroborated by secretly recorded conversations.
The ruling
The board ruled that the demands for wage repayment and the subsequent termination constituted an unlawful reprisal under the Act. The Board noted that even if there were valid business reasons for this dismissal, the primary motivation was his resistance to the wage repayment demands.
“I believe he is still affected emotionally by the treatment he received from the Company, although I also take into account that this did not prevent him from getting on with his life and finding alternative employment,” it said.
The Board ordered Niva Services to pay him a total of $62,026.60, comprising:
- Lost wages: $55,089.20
- Loss of job value: $2,937.60
- Emotional pain and suffering: $4,000
The company was given 30 days to make the payment, failing which additional administrative costs would be incurred.
Lessons from this case
- Compliance with Employment Standards: Ensure all employment practices, especially concerning wages and conditions, comply with the Employment Standards Act. Unlawful demands for wage repayment can lead to significant legal and financial repercussions.
- Proper documentation and communication: Maintain clear and consistent communication regarding employment terms. Any changes in employment conditions or performance issues should be well-documented and discussed transparently with employees.
- Avoid retaliation: Retaliatory actions against employees who assert their rights under the law are prohibited. Employers must foster an environment where employees feel safe to voice concerns without fear of reprisal.
For more information, see Martin Ramos Estrada v 6978991 Canada Inc. o/a Niva Services, 2024 CanLII 46368 (ON LRB)
