The Ontario Labour Relations Board (OLRB) has dismissed an application brought by a former Bentley Canada Inc. employee.
The worker, S.A., alleged that her termination and subsequent treatment by the company amounted to illegal retaliation. However, the Board found that her claims did not meet the legal threshold required for a hearing, primarily because she failed to establish a prima facie case.
The case revolved around S.A.’s contention that her dismissal and the actions Bentley Canada took following her termination were forms of reprisal in violation of section 50 of the Occupational Health and Safety Act (OHSA). Section 50 prohibits employers from penalizing employees for exercising their rights under the Act, which includes raising health and safety concerns or participating in related legal proceedings.
The OLRB dismissed the application on a preliminary basis without a hearing, citing the applicant’s failure to establish key elements of her claim. The Board concluded that S.A. had not demonstrated that Bentley Canada’s actions were in retaliation for any activity protected under the OHSA.
A claim of retaliation
S.A. was terminated as part of a global restructuring at Bentley Canada that impacted several dozen employees. According to her submissions, the retaliation took various forms after she requested legal counsel in response to her termination. These forms included the company withholding a reference letter, demanding out-of-pocket payments due to discrepancies in her benefits coverage, and failing to provide access to ADP, the payroll system, among others.
S.A. argued that these actions constituted intimidation and coercion, violating section 50(1)(d) of the Act, which prohibits employers from intimidating or coercing a worker who has acted in compliance with the OHSA.
Lack of nexus and specific details
However, the Board determined that S.A.’s claims lacked the necessary nexus — a causal connection — between her exercise of rights under the OHSA and the alleged retaliatory actions by Bentley Canada. The ruling stated that “the applicant has not identified any alleged request for the responding party’s compliance with the Act, attempt to enforce the Act, or any instance of providing testimony in a proceeding under the Act for which the responding party retaliated against her.”
Moreover, when asked by the Board to clarify and dispute the facts presented by Bentley Canada, S.A. did not provide specific details or sufficient evidence linking her claims to any health and safety concerns she might have raised during her employment. “The applicant did not provide any particulars including, when specifically these concerns were raised,” the Board noted, further emphasizing the insufficiency of her allegations.
In particular, the Board highlighted that mere dissatisfaction with post-termination treatment, including issues related to severance or benefits, does not inherently qualify as reprisal under section 50. The ruling referenced previous decisions, such as Honda of Canada Mfg., 2012 CanLII 78331 (ON LRB), which set out that an application under section 50 must demonstrate both the employer’s punitive action and a clear connection to the employee’s engagement with the OHSA.
Alternative legal avenues suggested
In dismissing the application, the Board pointed out that if S.A. believed the company’s conduct was unlawful for reasons unrelated to the OHSA, there were other legal avenues she could pursue. These include filing a complaint under the Human Rights Code if discrimination is believed to have occurred, or potentially seeking recourse under employment standards legislation.
“Dismissing an application without a hearing is a significant decision,” the ruling acknowledged, “but one that is necessary where the applicant has not met the foundational requirements set by law.” The Board concluded that S.A.’s allegations, as presented, did not warrant further proceedings under the OHSA.
For more information, see Sonila Agako v Bentley Canada Inc., 2024 CanLII 81167 (ON LRB).
