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
- Report it: When an employee is injured at work the employer should immediately report the accident to the Workplace Safety and Insurance Board.
- 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.
- 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]
There are many ways to attack the termination clause in an employment contract.
I am now surprised if employee counsel does not claim that their client’s termination clause is not legally enforceable - usually because the termination clause does not allegedly comply with the Employment Standards Act.
This blog considers a case, McKercher v Stantec Architecture Ltd., 2019 SKQB 100, where an employee successfully attacked the termination clause in his contract because he did not explicitly agree to it after being promoted.
The Facts
In 2006, Mr. McKercher commenced employment as a staff architect. The termination clause in his employment contract stated:
Termination other than for cause will be with notice or pay in lieu of notice, based on your length of service. If the Employer terminates your employment for other than just cause you will receive the greater of:
- a) Two weeks notice or pay in lieu of notice during the first two years of employment increasing by one week for each additional completed year of employment to a maximum of three months notice or pay in lieu of notice.
or
- b) The minimum notice of termination (or pay in lieu of notice) required by applicable statutes.
Eleven years later, when Mr. McKercher was employed as a Business Centre Sector Leader, his employment was terminated. The employer paid him the three months termination pay he was owed under his employment contract.
Another way to attack a termination clause: What is the changed substratum doctrine?
An Ontario judge in a 2012 case, MacGregor v National Home Services, 2012 ONSC 2042 (CanLII), described this legal doctrine as follows: "The changed substratum doctrine … provides that if an employee enters into an employment contract that specifies the notice period for a dismissal, the contractual notice period is not enforceable if over the course of employment, the important terms of the agreement concerning the employee’s responsibilities and status has significantly changed."
The rationale for this doctrine has been described by one judge, Schmidt v AMEC Earth & Environmental Ltd., 2004 BSCS 2012 (CanLII), as follows: "In my view, it was incumbent on the defendants to advise Mr. Schmidt that they intended to continue to rely upon the termination provision set out in the Agreement when substantial changes in his employment occurred. This would have allowed him to consider the matter and to negotiate for other terms. If the defendants wished to continue to rely on the termination provisions there ought to have been a ratification of the provisions as the nature of Mr. Schmidt’s employment changed."
Decision
The judge hearing this case relied on the following factors when deciding not to enforce the termination clause in the employment contract: ”...there is no evidence that (the employer) made it clear to the (employee) that the notice of termination provisions were intended to apply to the positions to which he was promoted. The employment agreement contains no express wording to this effect, nor does it contain any wording to support the inference of such an intent. Further, and in keeping with the analysis in Schmidt, the Court received no evidence that, as it promoted the plaintiff, SAL reasserted its understanding and expectation that the notice of termination limit would remain in effect.”
Lesson to be learned:
An employer should make it clear that the termination clause in an employment contract applies when an employee is promoted. This expression of this intent should be in writing and should be clear and unambiguous. I recommend that an organization’s employment be reviewed by an employment lawyer every year or two. If your employment contract does not address this issue then think about doing so the next time it is reviewed.
For 30 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]
The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.
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