The Ontario Labour Relations Board has dismissed a workplace safety reprisal claim from a former employee at Kaiser Aluminum Canada who was fired after being injured in a forklift accident in 2019.
Vice-Chair Brian Smeenk upheld the employer’s preliminary objection, determining that the applicant, A.M., failed to present sufficient facts to support his claim of unlawful reprisal under section 50 of the Occupational Health and Safety Act (OHSA).
A.M. alleged that he was wrongfully terminated after providing medical documentation for workplace injuries sustained in the accident. He claimed that his doctor’s notes were not taken seriously by management, stating, “All of my doctors notes, and documents provided to management were not taken seriously since I ended up being terminated.” A.M. also noted his long tenure with the company: “I was a loyal employee for 25 years, never got into misconduct — and was still not given a two weeks notice.”
Employer said termination was for time theft
In response, Kaiser Aluminum Canada Limited submitted that the application did not disclose a prima facie case and requested dismissal without a hearing. The employer argued that A.M. was terminated for unauthorized absences and “time theft,” citing an investigation that found he improperly took additional paid time off to attend physiotherapy appointments.
The Board had previously directed A.M. to provide submissions addressing the employer’s preliminary objection and to specify any disputed facts. A.M. did not make any further submissions by the specified deadline and was thus “deemed to accept the facts described in the Employer’s Response.”
Under the OHSA, section 50(1) protects workers from reprisals by employers for:
- Acting in compliance with the Act or regulations,
- Seeking enforcement of the Act or regulations, or
- Giving evidence in proceedings related to the Act or regulations.
The Board emphasized that to establish a violation of section 50, an applicant must demonstrate three elements:
- Engagement in a protected activity under the OHSA.
- Suffering an adverse employment consequence, such as dismissal or discipline.
- A causal link between the protected activity and the adverse consequence.
Vice-Chair Smeenk noted, “There is no factual basis in the application, assuming the allegations to be true, to conclude that [A.M.] was engaging in any of the three forms of protected activity at any relevant time.”
The Board further stated that while A.M. suffered an adverse consequence—termination—he failed to allege any facts indicating he engaged in a protected activity under the OHSA or that there was a causal connection between such activity and his termination. “The application thus does not make out a case for the orders or remedies requested, even if all the facts stated in it are assumed to be true,” the decision read.
Section 50 doesn’t deal with just cause
The ruling clarified that disputes over whether an employer had just cause for termination do not fall within the scope of section 50 unless connected to protected activities under the OHSA. “Dismissals, discipline or other penalties… that is initiated by a responding party for reasons not related to or tainted by the exercise of the worker’s rights under the Act, are not caught by this section,” the Board stated.
The Board also addressed the issue of “time theft,” with the employer alleging that A.M. took more paid time off than necessary for physiotherapy appointments.
“If an employer has a bona fide belief that such abuses have occurred, that may subject an employee to discipline. No causal connection between the adverse consequence and a protected activity would exist,” the decision noted.
The Board concluded by dismissing the application, stating, “The application is therefore dismissed.” This outcome serves as a reminder that while the OHSA provides important protections for workers, its anti-reprisal provisions have a specific and limited scope.
Employers should ensure that any disciplinary actions are well-documented and based on legitimate, non-retaliatory reasons. As Vice-Chair Smeenk emphasized, “Abuse of a protected activity or right is not protected by the Act.” Employers acting in good faith and for bona fide reasons unrelated to OHSA-protected activities are less likely to face successful reprisal claims.
For more information, see Anwar Muhammad v Kaiser Aluminum Canada Limited, 2024 CanLII 114226 (ON LRB).
