Was Bernice Let Go as a Reprisal for Work Refusal?
Section 50 of the Ontario Occupational Health and Safety Act protects workers who object to unsafe working conditions from reprisal. The section prohibits employers from terminating, disciplining or suspending a worker because they sought enforcement of the act.
In the spring of 2024, Bernice was working at a large fulfilment centre that shipped goods to online shoppers. Just after her shift started, she refused to continue working at her picking station. She said it was too hot to work there safely. She told her superiors and called the Ministry of Labour to investigate.
The health and safety committee did a temperature check and found it was at an acceptable and safe level. The ministry showed up and also did a temperature check and found there was no risk or discomfort. Three weeks later, Bernice was terminated. At first glance, it appeared to be a clear-cut case of reprisal.
Let’s back up.
Nine months before her termination, Bernice had received a written warning with respect to her becoming abusive, profane and insulting toward her supervisor when she was told not to use her cellphone while working — which was a safety violation.
The next month, she received a written warning for attendance problems. Six months before her termination, she received a written warning for abusing equipment. She was throwing totes from her pick station onto the floor. Two months before her last day, she received a warning for unacceptable quality of work.
All employees at this facility were required to pass through a metal detector when leaving work and open bags they had with them as part of the loss prevention program. A year before her termination, Bernice had failed to take her belt off and clear her jacket through the X-ray equipment. She said she needed the belt to keep her pants up.
One day when Bernice was going outside for her break, the metal detector kept beeping at her. She went through three times with her jacket on and off. She became frustrated and walked away. She told the security guard, “You guys don’t pay me enough to do screening in my break time.” She only filled out the necessary forms once her break was over, indicating that she thought the metal detector was broken.
A week before the work refusal incident, and one month before her termination, Bernice tried to exit the building without putting her jacket through the metal detector or X-ray machine. She dumped it where you would usually put clearly metallic things like keys. When the security guard asked her to take her jacket through the metal detector, she refused and left. This incident was not investigated for three weeks and the employer met with Bernice a week before her termination. She said she couldn’t remember the incident. A week later, she was terminated and the reason given was her repeated violations of the screening process.
So was Bernice let go because she engaged in a work refusal or the screening incident? Was Bernice’s perception of the heat at her picking station genuine or did she suspect she might get in trouble for the screening incident the week before and needed a shield? Bernice filed a complaint with the Ministry of Labour for reprisal and the adjudicator concluded that “Despite the seemingly suspicious timing of the termination, I am satisfied that there was no connection between Bernice’s exercise of her rights under the Act and the termination decision.”
The evidence was that investigations with respect to screening violations usually take about a month to conclude, unless they involve health and safety issues. The fact that it took some time for the employer to review the situation was not suspicious. Bernice’s claim was dismissed.
The decision had nothing to do with the fact that Bernice’s heat complaint was not upheld. She was, ostensibly, exercising her legal right based on her concern. She lost because of her own behaviour before the work refusal.
This article was originally published by The Hamilton Spectator.
