OHSA Update: The Cost of Firing an Employee for Filing a Complaint with the Ministry of Labour Just Went Up

Each year in Ontario, over 10,000 workers file a claim with the Workplace Safety and Insurance Board (WSIB) because they’ve been injured on the job to the extent that they cannot return to work the day after the injury. So, employers be wary: workplace accidents are very common and you can incur large costs if they are not handled appropriately. As we will see below, these costs are on the rise.

An employer was recently ordered to pay a former employee 27 weeks pay plus $ 7500 in damages for causing her mental stress in connection with a workplace injury. To my knowledge, this is the first time an adjudicator has ordered an employer to pay damages for mental stress in connection with this kind of complaint.

The Facts

Brenda Bastien worked as a manager at the ProHairlines hair salon.

One day she unplugged her cell phone charger from an electrical outlet. She received a serious electrical shock, which caused electric burns. She provided her employer with a medical note, which stated she could not work because of the electrical burns. The employer did not report the accident to the Workplace Safety & Insurance Board. The employer then refused her request for a leave and ordered her to work reduced hours. Ms. Bastien eventually took a sick leave. While on this sick leave she filed a complaint with the Minister of Labour (the MOL). When the employer found out about the complaint it terminated Ms. Bastien after 3.5 years of employment. The employer refused to issue Ms. Bastien a Record of Employment.

The Complaint

Ms. Bastien filed a no cost complaint under section 50 of Occupational Health and Safety Act claiming she was terminated because she filed a complaint with the MOL. In this kind of complaint, the onus is on the employer to prove it did not violate section 50; that is, it must prove it did not fire the employee for filing the complaint. This is called a reverse onus clause.

The Hearing

The employer did not show up at the hearing so the only evidence before the decision maker was Ms. Bastien’s evidence. Not surprisingly the adjudicator concluded there was a violation of section 50.

The Cost of Non-Compliance

The employer was ordered to pay Ms. Bastien 27 weeks pay for lost wages. She received lost wages up to the date of the hearing, plus an additional 6 weeks pay.

The employer was also ordered to pay Ms. Bastien $ 7500 for causing her mental stress (or about 12 weeks pay).

Lessons to be learned

1. Report it: When an employee is injured at work the employer should immediately report the accident to the Workplace Safety and Insurance Board.
2. Attend it: If an employee files a complaint with the MOL and a hearing is scheduled then the employer should always attend it. For another example, of what can happen if you decide not to attend a hearing, click here.
3. Keep the MOL out of it: In some cases, an employee can obtain more damages from the MOL than in the courts. In this case, an employee with 3.5 years service obtained almost 10 months pay.

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]