APGN Consulting violated Ontario’s Employment Standards Act (ESA) by terminating an employee partly because of absences related to COVID-19, the Ontario Labour Relations Board (OLRB) ruled.
R.R., who began working as a Divisional Sales Supervisor at APGN on July 11, 2022, alleged she was dismissed during her probationary period for exercising her statutory right to take infectious disease emergency leave (IDEL) and sick leave due to COVID-19. APGN maintained that the dismissal was based purely on performance issues unrelated to her absences.
After reviewing extensive evidence, the OLRB found APGN’s actions constituted unlawful reprisal, violating section 74 of the ESA. The board awarded R.R. damages totalling $23,038.46 for lost wages, loss of job value, and emotional pain and suffering.
Background and termination
R.R. was employed under a two-year fixed-term contract, including a 180-day probationary period, earning a salary of $70,000 annually. Her contract explicitly stated that probationary employees could not take any time off during the first 90 days.
In August 2022, shortly after starting employment, R.R. contracted COVID-19 and missed several days of work, some of which she worked from home. APGN terminated R.R. on Sept. 26, 2022, without providing a clear reason, despite having recently amended her contract to include additional responsibilities.
R.R. subsequently filed a complaint with the Employment Standards Branch, alleging APGN retaliated against her for using IDEL and sick leave provisions under the ESA.
Employer’s defence and contradictions
APGN argued the dismissal was solely due to R.R.’s performance, claiming she had overstated her qualifications and lacked necessary skills, such as proficiency in Excel. APGN’s HR Manager, S.M., testified that performance issues — not absences — prompted the dismissal. However, S.M. also provided documents explicitly citing R.R.’s absences as contractual breaches and reasons for termination.
Under cross-examination, S.M. confirmed that absences indeed factored into the decision, contradicting earlier testimony. After a break, she attempted to alter this statement, but the OLRB found her revised testimony unreliable and disregarded it entirely.
N.B., APGN’s President, similarly gave contradictory testimony regarding the role absences played in the termination decision. Additionally, a Statement of Defence filed by APGN in a related civil action explicitly cited absences as reasons for dismissal.
OLRB findings
The board noted significant inconsistencies and contradictions in APGN’s evidence. Particularly, documents submitted by APGN to the Employment Standards Officer explicitly listed R.R.’s COVID-related absences as reasons for termination.
The OLRB applied the established “tainting doctrine,” ruling that even if absences were only part of APGN’s motivation, it still constituted unlawful reprisal under the ESA. The board concluded APGN failed to demonstrate that R.R.’s protected absences under IDEL and sick leave played no role in her dismissal.
Damages awarded
The OLRB ordered APGN to pay R.R. a total of $23,038.46, including:
- $18,846.15 for lost wages from the termination date until she found new employment.
- $2,692.31 for loss of job value, recognizing her reasonable expectation of continued employment.
- $1,500.00 in general damages for emotional pain and suffering.
The payment is required within 30 days of the decision, subject to statutory deductions for lost wages.
For more information, see Rabia Rehman v APGN Consulting Inc., 2025 CanLII 20182 (ON LRB).
