The Ontario Labour Relations Board (OLRB) has declined to dismiss a reprisal application filed by a former employee of Red Lobster who alleges he was removed from the work schedule and subsequently terminated after raising concerns about workplace sexual harassment on behalf of a co-worker.
Vice-Chair Peigi Ross determined that K.H. had established a prima facie case under the Occupational Health and Safety Act (OHSA), which protects workers from reprisals when they exercise their rights under the legislation.
Red Lobster had requested the dismissal of the application on the grounds that it failed to make out a prima facie violation of the OHSA. The Board, however, concluded that the allegations, if assumed to be true, could constitute a violation of the Act. “Assuming the underlying facts are true and provable, being removed from the schedule shortly after filing a complaint of sexual harassment could be a violation of the Act,” the decision stated.
Allegations of reprisal
K.H., who was initially represented by the United Food and Commercial Workers, Local 1006a (UFCW) in a separate termination grievance that has since been withdrawn, claimed he faced retaliation after filing a complaint with the Human Rights Tribunal of Ontario on July 12, 2024.
In his application, K.H. detailed the events leading to the alleged reprisal:
- “I spoke up against sexual harassment in the workplace on behalf of a co-worker and filed an application against Red Lobster with the Human Rights Tribunal of Ontario.”
- On July 21, 2024, he received an email stating that his schedule had been modified to “not scheduled.” He noted, “I’ve been off the schedule ever since.”
- K.H. also alleged that on August 1, 2024, he was informed he was not allowed in the restaurant when he visited with a co-worker’s daughter.
He contended that Red Lobster used his protest against workplace harassment as a pretext to terminate his employment. K.H. is seeking reinstatement as a remedy.
Board’s analysis and decision
The Board emphasized its responsibility to assume the facts presented by the applicant are true when deciding whether a prima facie case exists. It referred to the criteria established in EC King Contracting (2010 CanLII 8391), stating that an applicant must:
- Assert that they were discharged, disciplined, threatened with discharge or discipline, intimidated, and/or coerced.
- Allege that this action was a direct result of acting in compliance with, or seeking the enforcement of, the Act or regulations.
“In short, the pleadings of the applicant must, on their face, set out a clear causal nexus between rights and procedures arising under this Act (or its regulations) and the negative consequences which the employee claims to have been subjected to,” the Board cited.
Applying this standard, the Board found that K.H.’s allegations met the necessary threshold. “Having regard to the pleadings set out in the complaint and the reverse onus under section 50(5), the Board is satisfied that it should not exercise its discretion to dismiss the case for failing to disclose a prima facie case,” Vice-Chair Ross wrote.
Limitations of the board’s jurisdiction
The decision also clarified the scope of the OLRB’s jurisdiction concerning harassment complaints. “The Board has no jurisdiction to address or remedy the underlying complaint of sexual harassment,” the decision noted, referencing previous rulings such as Ljuboja v Aim Group Inc and Nooshin v Deloitte Management Service LP.
“This is in part because the Act does not guarantee a workplace free of harassment; that is the purview of other legislation,” the Board explained. The primary issue before the Board is whether there was a reprisal under section 50(1) of the OHSA, not the validity of the underlying harassment allegations.
The matter has been referred to the Registrar for further action. Red Lobster will have the opportunity to respond to the allegations, and the case will proceed unless resolved beforehand.
For more information, see Kevin Huggins v Red Lobster, 2024 CanLII 114223 (ON LRB).
