October 22, 2015
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Nelligan O'Brien Payne gratefully acknowledges the contribution of Jill Lewis, Student-at-Law, in writing this blog post.

Employers governed by Ontario’s Workplace Safety and Insurance Act, 1997 are required to report workplace injuries to the Workplace Safety and Insurance Board (“WSIB”). When they fail to do so and employees instead take it upon themselves to report such issues, Ontario’s Occupational Health and Safety Act (“OHSA”) protects these employees, prohibiting an employer from dismissing or threatening to dismiss them, among other things, for such reports.

In the case of Brenda Bastien v 817775 Ontario Limited (Pro-Hairlines), the Ontario Labour Relations Board (“OLRB”) awarded damages to an employee for lost wages and aggravated damages after the employee was fired for reporting to the WSIB the occurrence of an electrocution. The employer had failed to report this injury itself.

Brenda Bastien was working as Manager of Pro-Hairlines salon for three and a half years when she was electrocuted at work on June 2, 2013. This occurred after Ms. Bastien unplugged her cell phone from a power bar located below hanging wet wigs. She experienced a severe shock, immediate leg pain, and a tingling sensation in her fingers. She remained at work but that night was unable to sleep due to the pain in her leg, dizziness and a sense of being very cold.

Ms. Bastien visited her family physician the next day, who prescribed Tylenol for the pain. By the end of the week, she had broken out in welts, bruises and burn lesions on her legs, feet and arms. She saw a second physician, who recommended that she take the week off from work. Ms. Bastien’s employer, Dimitrios Vasiliades, refused to give her the time off but allowed her to work reduced hours. When her symptoms did not dissipate, Ms. Bastien insisted on taking time off and Mr. Vasiliades reluctantly allowed her to take a period of unpaid sick leave.

Despite Mr. Vasiliades’ knowledge of the accident, he did not report the injury to the WSIB or address the unsafe outlet. Ms. Bastien therefore filed a report with the Occupational Health and Safety Branch of the Ministry of Labour, and seven days later, while she was still on leave, a safety inspector came to the salon. Following the salon visit, Mr. Vasiliades’ personal assistant called Ms. Bastien and stated “I can’t believe you called the Ministry of Labour, why would you do such a stupid thing?”. He continued by telling Ms. Bastien how furious Mr. Vasiliades was with her and that Mr. Vasiliades’ father never wanted to see her again. Two days later, the assistant called Ms. Bastien again saying it was “a stupid thing you did” and then proceeded to fire her immediately.

Mr. Vasiliades’ vindictive behaviour continued after termination by refusing to issue Ms. Bastien’s final paycheque or Record of Employment (“ROE”). Ms. Bastien sought assistance from the Employment Insurance Office who resolved the matter in her favour, at which point she had been without Employment Insurance for four months.

Ms. Bastien filed a complaint with the OLRB on August 26, 2013, alleging her dismissal was a reprisal for having reported a health and safety hazard. Section 50(1)(a) of the OHSA prohibits an employer from terminating or threatening to terminate a worker who sought the enforcement of the OHSA. Section 50(5) of the OHSA states that “the burden of proof that an employer or person acting on behalf of an employer did not act contrary to subsection (1) lies upon the employer or the person acting on behalf of the employer”. Mr. Vasiliades did not participate in the proceedings and as such was unable to satisfy this burden.

The OLRB agreed with Ms. Bastien, finding that Mr. Vasiliades had breached section 50(1) of the OHSA and awarded Ms. Bastien $16,659 for lost wages and $7,500 in aggravated damages.

The OLRB relied on the 2013 Ontario case of Barber v. LP Services in finding that an employer who does not attend the hearing does so at “its own risk”. The OLRB was satisfied that, based on Ms. Bastien’s evidence, her termination and the treatment surrounding her termination was in direct retaliation for her complaint to the Ministry of Labour. The OLRB continued in finding that the reluctance of her employer to provide Ms. Bastien with her ROE was “a ruse designed to cause financial hardship”.

Considering her reinstatement to be an inappropriate award, the OLRB instead awarded Ms. Bastien lost wages from the date of termination until the date of the hearing, plus an additional six weeks in appreciation of the difficulty in finding new employment during the holiday season.

The OLRB also awarded $7,500 in aggravated damages, classifying Ms. Bastien’s dismissal as “insensitive, demeaning and humiliating”. The OLRB relied on the rule in Wallace v. United Grain Growers Ltd. and Honda Canada Inc. v. Keays to hold the employer financially responsible for mental distress arising from mistreatment during termination.

If you find yourself in a similar situation, speak to an employment lawyer – we can help.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law