Ontario Labour Relations Board

[1990] OLRB Rep. January 3

2848-88-EP Vinod Mohindra, Complainant v. Bakelite Thermosets Limited, Respondent

BEFORE: Robert Herman, Vice-Chair, and Board Members W. A. Correll and C. McDonald.

APPEARANCES: David Harris for the complainant; Leonard Ricchetti and Hilary Clarke for the respondent.

DECISION OF THE BOARD; January 29, 1990

The complainant Vinod Mohindra was an employee of the respondent Bakelite Thermosets Limited until June of 1988, at which time he asserts he was discharged in contravention of section 134b(2) of the Environmental Protection Act (also referred to as the "Act"). He does not seek reinstatement by way of remedy, but only compensation.

2. At the conclusion of the hearing the Board orally ruled that the company had breached the Act. We now provide our reasons for that decision.

3. Section 134b of the Environmental Protection Act reads as follows:

134b.-(1) In this section, "Board" means the Ontario Labour Relations Board.

(2) No employer shall,

(a) dismiss an employee;

(b) discipline an employee;

(c) penalize an employee; or

(d) coerce or intimidate or attempt to coerce or intimidate an employee,

because the employee has complied or may comply with,

(e) the Environmental Assessment Act;

(f) the Environmental Protection Act;

(g) the Fisheries Act (Canada);

(h) the Ontario Water Resources Act; or

(i) the Pesticides Act.

or a regulation under one of those Acts or an order, term or condition, certificate of approval, licence, permit or direction under one of those Acts or because the employee has sought or may seek the enforcement of one of those Acts or a regulation under one of those Acts or has given or may give information to the Ministry or a provincial officer or has been or may be called upon to testify in a proceeding related to one of those acts or a regulation under one of those Acts.

(3) A person complaining of a contravention of subsection (2) may file the complaint in writing with the Board.

(4) Where a complaint is filed in writing with the Board,

(a) the Board may authorize a labour relations officer to inquire into the complaint; or

(b) the Board may inquire into the complaint.

(5) A labour relations officer who is authorized to inquire into the complaint shall make his inquiry forthwith and shall endeavour to effect a settlement of the matter complained of and shall report the results of his inquiry and endeavours to the Board.

(6) Where the labour relations officer is unable to effect a settlement of the matter complained of, the Board may inquire into the complaint.

(7) Where the Board inquires into the complaint and is satisfied that an employer has contravened subsection (2), the Board shall determine what, if anything, the employer shall do or refrain from doing with respect thereto.

(8) A determination under subsection (7) may include, but is not limited to, one or more of,

(a) an order directing the employer to cease doing the act or acts complained of;

(b) an order directing the employer to rectify the act or acts complained of; or

(c) an order directing the employer to reinstate in employment the complainant, with or without compensation, or to compensate in lieu of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer.

(9) A determination by the Board under subsection (7) applies notwithstanding a provision of an agreement.

(10) On an inquiry under this section, the burden of proof that an employer did not contravene subsection (2) lies upon the employer.

(11) Where there is a failure to comply with a term of the determination made under subsection (7), the complainant, after the expiration of fourteen days from the date of the release of the determination by the Board or from the date provided in the determination for compliance, whichever is later, may notify the Board in writing of the failure.

(12) Where the Board receives notice in accordance with subsection (11), the Board shall file in the office of the Registrar of the Supreme Court a copy of the determination, exclusive of the reasons therefor, if any, and the determination shall be entered in the same way as a judgment or order of the court and is enforceable as such.

(13) Where the matter complained of has been settled, whether through the endeavours of the labour relations officer or otherwise, and the terms of the settlement have been put in writing and signed, the settlement is binding and shall be complied with according to its terms, and a complaint that a settlement has not been complied with shall be deemed to be a complaint under subsection (3).

(14) The Labour Relations Act and the regulations under that Act apply with necessary modifications in respect of a proceeding under subsections (2) to (13).

(15) For the purposes of subsections (2) to (14), an act mentioned in subsection (2) that is performed on behalf of an employer shall be deemed to be the act of the employer. 1983, c.52, s.

23. In making our findings of fact, we have preferred the evidence of the complainant, Mohindra, where it conflicts with the evidence of the two witnesses called by the company, John Hadden and Bill Churchward. Having observed all three in the witness stand, we are satisfied that Mohindra's evidence was more credible. The testimony of both Hadden and Churchward was given in a somewhat evasive manner, was internally inconsistent, and was inconsistent in some respects with each other's version of what had occurred. For example, Hadden testified that the decision to terminate Mohindra was made solely by him and Churchward. In contrast, Churchward testified the decision was made in addition with the assistance of legal counsel and the President of the respondent, Clive Marsden. We also note that a number of areas of conflict between the testimony of Churchward and Mohindra involved evidence with respect to what each claimed had occurred at various meetings which they attended. The company did not call to testify any of the other company officials identified by both Churchward and Mohindra as having participated in those meetings. Having found Mohindra more credible a witness, we accept his version of events.

24. Mohindra had been an employee of the company, or its predecessor, since approximately November 1975. At the relevant time he was employed as an environmental technologist. His duties and responsibilities included liaison with the provincial Ministry of the Environment, the monitoring of air, water and ground facilities of the respondent, and the monitoring of effluents. Mohindra was also responsible for reporting as necessary information to the Ministry of the Environment; for example, the reporting of any spills or inappropriate emissions from the plant, and the reporting with respect to the company's environmental projects, if any.

25. Mohindra had clearly been unhappy working for the respondent for some period of time, and had been trying to obtain other employment since approximately 1987. Part of that unhappiness stemmed from his feelings that he had not been properly treated at work, and part stemmed from the fact that his family had moved from Belleville, where the plant was located, to Toronto in November, 1987. Mohindra was taking steps to join his family and in February, 1988, he listed his house for sale. On April 12, he sold the house, with a closing date of June 30, 1988.

26. Insofar as this complaint is concerned, the critical events at work began on March 31,

27. On that date, officials of the Ministry of the Environment showed up unannounced at the plant with a search warrant, and searched the respondent's premises, removing documents from the offices of several employees, including Mohindra's. The next day, April 1, 1988, a strategy meeting was convened at the instigation of the Plant Manager, Bill Churchward. In addition to Mohindra and Churchward, also present at this meeting were Bruce Carter, the Production Manager, Bob Simco, the Distribution Manager, Paul Green, the Accounting Manager, Bruce Clark, and two legal counsel (not counsel who appeared in these proceedings). During the discussion of the Ministry of the Environment's investigation and the company response, Mohindra advised those present that he had in the past falsified reports to the Ministry and that he had done so with the blessing and knowledge of his superiors at the time. Mohindra made clear that his superiors had been aware of what he was doing. Churchward responded that he had not previously been aware of that allegation. Mohindra in turn replied that to the contrary he had kept Churchward informed. Churchward advised those at the meeting to go through their documents and make a list of them. He also advised Mohindra to remove sensitive documents from his file cabinets and to destroy them. Mohinda told Churchward that he was reluctant to do so, as the Ministry of the Environment officials had made a list the previous day of the documents in his possession.

28. Shortly thereafter the meeting broke up and Mohindra went back to his office, to begin going through his files. When Mohindra's wife phoned to say she needed the car, Mohindra went to Churchward and advised him of this request and that he had to leave. Churchward told Mohindra that he had better protect himself and therefore ought to return right afterwards and continue working on his files. Mohindra again told Churchward that what he had done had been with the full knowledge of his superiors.

29. After taking his car home, Mohindra returned to the plant, and continued cleaning up of his office and going through his files. Instead of destroying the files however, Mohindra secreted them on his person and took them home. He did not advise Churchward he was doing this.

30. Three days later, on April 4, 1988, Churchward and the complainant were involved in investigating some foam residue which had been found at a particular location on site. The two of them disagreed on the appropriateness of reporting this event to the Ministry of the Environment. Churchward ultimately told the complainant not to report the incident. That same day, Mohindra advised Ron Carter that he had removed sensitive documents from his office on April 1st, and had taken them to his residence. Ron Carter was the Manager of Environmental Affairs for the parent company of the respondent. It was part of Mohindra's duties and responsibilities to send carbon copies to Carter of all his correspondence with respect to his environmental duties.

31. On April 5, 1988, along with other employees of the company, Mohindra and the Ministry of the Environment officials met in Kingston. On April 11 or 12, 1988, Churchward attended at Mohindra's office and advised him to destroy some sensitive environmental documents. On April 13, 1988, another incident occurred of effluent being observed where it ought not to have been, and again Mohindra wanted to report the incident to the Ministry of the Environment. Churchward told him not to file a report.

32. On April 19 and 20, two inspectors from the Ministry of the Environment attended at the complainant's house and had an "off the record" discussion with Mohindra about environmental affairs at the respondent. The meeting ended with an arrangement to meet again the following week. This subsequent meeting never took place.

33. That same day, April 20, Churchward and the complainant had another meeting. Churchward told Mohindra not to maintain log books, a type of written record which the complainant would ordinarily have maintained.

34. At this stage, Mohindra was becoming concerned about his prior falsification of records. The impression he was gaining was that the company, who had been aware of such incidents, was now going to abandon him and refuse to support him. Mohindra accordingly retained his own legal counsel. On April 28, Churchward called Mohindra into his office, and again instructed the complainant not to write out sensitive memos or fill in sensitive information in the log books.

35. On May 2, John Hadden started work for the respondent as the new Plant Engineer. As Plant Engineer, Hadden was Mohindra's immediate supervisor, and in turn was supervised by Churchward. Hadden's responsibilities included the environmental affairs of the respondent. Hadden met Mohindra on his first day, May 2nd. That same day Mohindra received, directly or through his legal counsel, a letter from counsel in the Legal Services Branch of the Ministry of the Environment indicating that the Ministry was undertaking that Mohindra would not be prosecuted for any offences under the Environmental Protection Act and/or the Ontario Water Resources Act with respect to his employment with the respondent. This undertaking was given on condition that Mohindra's statements were both true and fully disclosed all the relevant facts of which he was aware, and that he further co-operated fully with the Ministry in its investigation into and prosecution of alleged offences committed by the respondent.

36. That day was the last day the complainant worked for the respondent. The following day, May 3, the complainant did not show up for work, advising the employer that he was suffering from a bad back and was unable to work. Mohindra spoke to Hadden on May 4th, and told him that he was also suffering from tension, which in turn was causing headaches and backaches. Hadden was advised that the complainant would likely be off work for a couple of weeks.

37. On May 15, 1988, Mohindra met with Ron Carter (the Manager of Environmental Affairs for the parent company) and told Carter of the events that had transpired, including the Ministry of the Environment search on March 31, the meetings and interactions with Churchward on April 1st, 4th, 5th, and so forth. He told Carter that he was confused, anxious, and unable to sleep. He also told Carter that he was at that point desperate and considered himself somewhat divorced from the company.

38. The following day, May 16, Carter phoned Mohindra and asked Mohindra to meet with him and his lawyer in order to discuss events. A meeting was suggested for May 18, but in the interim Mohindra spoke to his counsel who advised that he not attend. The meeting therefore never occurred.

39. On June 2nd, 1988, Hadden phoned Mohindra and told him that the company had arranged for an appointment for Mohindra to be examined by the company's doctor, Dr. Sherlock, on the following day. Mohindra did not attend that examination, as his counsel advised Mohindra to first see his own doctor. A subsequent appointment was arranged for June 10 for Dr. Sherlock to examine Mohindra, and Mohindra was in fact examined on that day.

40. On June 13, 1988, Mohindra was sent a letter by counsel from the same law firm as the lawyer acting for Ron Carter (as discussed in paragraph 18 above). Mohindra was still off work on sick leave. It reminded Mohindra of the confidentiality agreement he had agreed to when he began employment, and further reminded him that as part of his obligations, "[he] should return forthwith any materials or documents belonging to the company in [his] possession. If [he] would like to arrange for the return of such materials or documents, please contact the writer." There was no evidence before the Board as to who caused this letter to be sent or why it was sent.

41. In a letter dated June 15, 1988, two days later, Hadden wrote to Mohindra advising him that he was required to return to work by Monday, June 20, 1988. The letter noted that the company had consulted with Dr. Sherlock and it was the company's opinion that Mohindra could resume his job in a limited capacity, working at a desk and minimizing strain to his back. On June 17, 1988, Mohindra saw another doctor with respect to his problems.

42. On June 20, Mohindra did not return to work, as demanded by Hadden's letter of June

43. Hadden and Churchward, together with the input and assistance of Marsden, President of the company, and legal counsel, decided to terminate the employment of Mohindra, on the grounds of failure to return to work as required. No other grounds were given or relied upon by the company as justifying the discharge. The company was well aware when it made this decision of the Ministry of the Environment's investigation. Churchward testified that Mohindra's interaction with this investigation had nothing to do with the company's decision to consult the company's President and legal counsel over whether to discharge Mohindra.

44. While the decision was taken on June 20 to terminate Mohindra, no termination letter was either drawn up or sent to him, nor was the decision communicated to him. Shortly after the termination decision was made, the company received a letter from Mohindra, dated June 17, 1988, enclosing a further medical certificate from his family physician, indicating that he was suffering from anxiety and depression and remained unable to work. Churchward discussed this letter with Marsden, Hadden, and legal counsel. Both Hadden and Churchward testified that they believed this new medical report and its contents. Nevertheless, they testified they each felt that Mohindra was simply raising another excuse for not coming to work.

45. On June 23, Mohindra saw a psychiatrist, and the psychiatrist's medical opinion indicating that Mohindra could not work was forwarded to the company doctor, Dr. Sherlock, on June 28, 1988.

46. The letter of termination, signed by Hadden, was finally drawn up on July 4, 1988, indicating that Mohindra had been fired as of June 20, and stating that "this action is necessary as you did not report for work on June 20, 1988 as directed. Please be advised that all secrecy and confidentially [sic] agreement signed by you are in effect and that these agreements do not allow you to remove confidential information from company premises or to disclose confidential information to third parties." Hadden's secretary did not mail the letter. Instead, she simply placed it in Mohindra's mail slot at the plant, notwithstanding that he had been off on sick leave since May 2, 1988 and notwithstanding that the letter was a letter of termination because he had failed to return to work. The company also filled out a Record of Employment dated July 7, 1988, for Employment and Immigration Canada, in which it indicated, as the reason for issuing the Record, "Failed to return to work when requested".

47. During this period, Mohindra continued to look for work with other employers. He had obtained letters of reference from the company to assist him with his search. He remained unaware of his termination.

48. In a letter dated July 21, 1988, Mohindra's lawyer wrote to Hadden advising him that Mohindra had not received his pay cheque for the most recent pay period. It was through this letter that Hadden and the company realized that the July 4 termination letter had not been received by the complainant. Hadden immediately caused the July 4 termination letter to be forwarded to Mohindra. Mohindra received it on July 26, 1988. The letter went out as originally written and it remained dated July 4,1988. Receipt of this letter on July 26 was the first knowledge the complainant had or could have had of his termination.

49. The following week, in a letter dated August 3, 1988, counsel for Mohindra wrote to counsel for the company indicating the complainant's dissatisfaction with his termination and advising the company that legal action might be taken. In response, in a letter dated August 12, 1988, counsel for the company wrote to Mohindra's counsel denying that Mohindra had been terminated as a result of responding to inquiries from the Ministry of the Environment. Counsel wrote that "Mr. Mohindra breached his confidentiality agreement by providing a number of Bakelite's documents to the Ministry of the Environment and that in itself was sufficient cause for dismissal. In any event, Mr. Mohindra's failure to return to work to undertake light duties was also sufficient cause for his termination."

50. On August 22, 1988, Mohindra obtained alternative employment.

51. Our inquiry under section 134b of the Environmental Protection Act focuses on the reasons for Mohindra's discharge. In this sense it is not dissimilar from the Board's inquiry pursuant to section 24(1) of the Occupational Health and Safety Act. The issue that the Board must decide is why Mohindra was discharged by the respondent. If we are satisfied that any part of the reason for his discharge was for an impermissible reason as set out in section 134b(2) of the Environmental Protection Act, then the employer will have breached the Act. As the Board wrote in Commonwealth Construction Company [1987] OLRB Rep. July 961 in discussing its inquiry under the Occupational Health and Safety Act:

52. The issue we must decide is why the complainants were discharged. This turns on our finding of the facts, based on our assessment of the evidence and whether we believe the company's claim that it discharged them because they wouldn't perform their work, or the complainants claim that they were performing their work and never took company time for their pursuits, and were discharged because they raised safety matters. Put in terms of the statutory language, were the complainants discharged because they acted in compliance with the Act or because they sought its enforcement? It is important to understand that what is protected by the Act is the right of employees not to be threatened or disciplined because of their acting in compliance with the Act (or regulations etc.) or seeking its enforcement. An employee might engage in conduct warranting discipline, and in those circumstances an employer can impose discipline, provided the discipline is not motivated even in part by a concern that the employee was acting in compliance with or seeking to enforce the Act. Discipline levied for that reason is proscribed by section 24(1). Whether a breach is found will depend on whether the Board concludes that the disciplinary response was even partially prompted because the employee was seeking to exercise his or her rights under the Act. In this respect, the Board's inquiry under section 24 of the Act parallels the nature of the inquiry under section 89 of the Labour Relations Act. As the Board noted in Westinghouse Canada Limited, [1980] OLRB Rep. April 577:

53. We now turn to the unfair labour practice provisions underlying this complaint and to a consideration of the law as it relates to the degree of anti union motive necessary to establish such violations of the Act. For the purpose of our analysis it is useful to distinguish between decisions affecting individual employees and major business decisions having potentially broader impact. In dealing with the treatment of individual employees this Board has consistently held that if only one of the reasons for an employer's actions against an employee (discharge, layoff, transfer, demotion, etc.) is related to union activity the action is in contravention of the Act. Given the reverse legal onus mandated by section 79 (4a) the Board has held that to find there has been no violation of the Act in these kinds of cases it must be satisfied that the employer's actions were not in any way motivated by anti-union sentiment. The Board summarized this approach and the effect of the statutory reversal of the legal burden of proof in The Barrie Examiner case, [1975] OLRB Rep. Oct. 745 as follows:

……the appearance of a legitimate reason for discharge does not exonerate the employer, if it can be established that there also existed an illegitimate reason for the employer's conduct.

This approach effectively prevents an anti-union motive from masquerading as just cause. Given the requirement that there be absolutely no anti-union motive, the effect of the reversal of the onus of proof is to require the employer to establish two fundamental facts - first, that the reasons given for the discharge are the only reasons and, second, that these reasons are not tainted by any anti-union motive. Both elements must be established on the balance of probabilities in order for the employer to establish that no violation of the Act has occurred.

(See also Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 294 and Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 299.) Judicial support for this application of the law is found in Regina v. Bushnell Communications et al (1973), 1 OR. (2d) 422 wherein the Ontario High court overturned a lower court decision which had dismissed a complaint under section 110(3) of the Canada Labour Code, which is identical in all material respects to section 58 of The Labour Relations Act, on the grounds that membership in a union was not established as the 'principal reason' for the termination of employment. The High Court held:

In considering an enactment devoid of the words 'sole reason' or 'for the reason only' applied to the act of dismissal and resting only on the word 'because', the Court must take an expanded view of its application. If the evidence satisfies it beyond a reasonable doubt that membership in a trade union was present to the mind of the employer in his decision to dismiss, either as a main reason or one incidental to it, or as one of many reasons regardless of priority, s. 110(3) of the Canada Labour Code has been transgressed.

The decision of the High Court was upheld on appeal by the Court of Appeal (1974 CanLII 559 (ON CA), 4 OR. (2d) 288) and was cited with approval by the Federal Court in Sheehan and Upper Lakes Shipping Limited et a) (1977), 1977 CanLII 3060 (FCA), 81 D.L.R. (3d) 208. In this jurisdiction, therefore, the Board, with judicial support, applies a 'taint theory' in dealing with alleged unlawful treatment of individual employees. If an employer's actions impact against employees and the motives underlying the employer's action are in any way tainted by an anti-union animus the employer is in violation of the Act.

The same sorts of considerations and analysis apply in our view to alleged violations of Section 24 of the Occupational Health and Safety Act. If the respondent has convinced us that no part of the reason for the discharges was concern over the complainants' seeking enforcement of the Act or acting in compliance with it, then the respondent will not have violated section 24 of the Act.

31. There are of course differences between these pieces of legislation but under each of them the approach the Board takes is to assess whether any part of the motivation for the discharge was for an impermissible reason as set out in the statute. Under this Act, as under the Occupational Health and Safety Act or the Labour Relations Act, the burden of proof is upon the employer (see section 134b(10)).

32. We conclude that Mohindra was absent from work not only because of his back problems and state of anxiety, but in part as well because of his unhappiness at working under the direction of Churchward. But this conclusion does not mean that the company was not in breach of the Act. The question we must answer is not whether Mohindra was entitled to have been absent from work for the only reasons he claimed to be so entitled (his state of health). Rather, we must ascertain whether the company discharged Mohindra solely for the reasons it claims to have discharged him, his failure to return to work on June 20, 1988, or whether one of its reasons for the discharge was contrary to section 134b(2). To return to the statutory language, was he discharged because he, for example, provided information to the Ministry. On this question, we conclude that the company's reasons for discharging Mohindra were not truly related to his failure to return to work. We conclude he was discharged because he was either acting in compliance with or seeking the enforcement of the Environmental Protection Act, or because he was providing information to the Ministry of the Environment. Termination for any of these reasons is a breach of the Act.

33. The company maintains that the sole reason it terminated Mohindra was his failure to return to work, in a limited capacity, on June 20, by which time the company felt Mohindra could have performed light duties. Only the decision to terminate Mohindra was made on June 20. Mohindra was not notified of the decision on June 20. No termination letter was drawn up until July 4, 1988 and the Record of Employment was not drawn up until July 7, 1988. By these dates the company was in possession of several additional pieces of medical information, including the June 17, 1988, medical certificate from Mohindra's family physician and the June 28 medical letter from the psychiatrist who had examined Mr. Mohindra. Both those letters indicated that Mohindra remained unable to work, contrary to the view held by the company on June 20.

34. Notwithstanding that the company had before it this new medical information, it made no attempt to contact Mohindra to discuss the additional medical information nor to ask him whether he was still unable to work. Instead, the company chose to maintain its decision of June 20, discharging him because he had failed to return to work when it felt he was medically able to work in a limited capacity, based upon information which the company itself was aware was probably no longer accurate.

35. The company claims that Mohindra's environmental activities formed no part of its decision to terminate Mohindra on June 20, 1988 for failure to return to work. If so, it is difficult to understand why company counsel wrote to Mohindra the week before, when he had already been off on sick leave for almost 6 weeks, reminding Mohindra of his obligation to maintain the confidentiality of the company's information, and advising him that he should return forthwith to the company any materials or documents belonging to the company in his possession. It will be recalled that the Manager of Environmental Affairs, Ron Carter, had been told by Mohindra on April 4, 1988, that Mohindra had removed sensitive documents from his office at work and was retaining them at his residence. It was company counsel, from the law firm retained by Carter, who wrote this June 13th letter to Mohindra. It will also be recalled that Mohindra met with Ron Carter on May 15, 1988, and relayed to him a complete recital of the events that had occurred, including Mohindra's interaction with Churchward and Mohindra's role in the environmental problems. And Marsden, the President of the company, was consulted on June 20 over whether Mohindra should be terminated. The Board did not have the benefit of Marsden's evidence, but we conclude that he participated in the decision because of concern over Mohindra's environmental activities. It is clear that the company was concerned with Mohindra's interaction with the Ministry of the Environment and the information contained in his files, which the company knew Mohindra had stored at his residence.

36. It was concerned also with the approach that Mohindra took to reporting incidents and information to the Ministry, an approach different than was taken by his superior Churchward. The company saw an opportunity (it thought) on June 20th to discharge Mohindra, since it could maintain that as of June 20th it had sufficient legal grounds to discharge him. Although the company was apprised, before it notified Mohindra of the termination, that Mohindra did in fact have valid medical reasons for continuing his absence, it nevertheless reaffirmed its decision to terminate him and it communicated that decision to him. At the time it did so, it was either fully aware that it had been mistaken in its view that he was able to return to work or in possession of additional medical evidence which contradicted its view. Yet it took no steps to communicate with Mohindra or its own doctor. Nor did it modify its decision. There can be no serious question that the termination was motivated by other reasons.

37. The company knew Mohindra had copies of documents containing environmental information at his home. He had disobeyed the company's direction to destroy this information. It knew he continued to record information, as part of his duties and responsibilities, on environmental matters which it had asked him not to record. The company knew he was objecting to the company's directions that he not report information to the Ministry of the Environment. The company knew he felt it was his duty under the law to report this information. We are satisfied in the result that a major reason for Mohindra's discharge was because of Mohindra's acting in compliance with the Act or seeking its enforcement or providing information to the Ministry. The discharge was therefore in breach of the Environmental Protection Act.

38. The Board also heard submissions and ruled upon the appropriate approach to assessing the quantum of damages, if any. Counsel for the complainant submitted that the minimum periods of notice contained in the Employment Standards Act applied to the instant case, and should a breach be found, the complainant was entitled to the minimum number of weeks of pay in lieu of notice set out by that statute regardless of his actual losses. Mohindra was successful in obtaining alternative employment, at a higher rate of pay, approximately two months after the June 20th termination. In this case, therefore, the pay in lieu of notice required by the Employment Standards Act (we were told) was more than the lost wages for these two months. Counsel submitted that these statutory minimums were the appropriate amounts.

39. The Board does not agree. The Board's consideration of damages (or other remedial action) is based upon the principle of compensation. It is not predicated upon either punitive relief or windfall moneys for a successful complainant. In this respect, we adopt the approach taken by the Board pursuant to its unfair labour practice jurisdiction under the Labour Relations Act, wherein the Board has concluded that compensation is the appropriate test. See, for example, Radio Shack [1979] OLRB Rep. Dec. 1220, Third Dimension Manufacturing Limited [1983] OLRB Rep. Feb. 261. It was not suggested that damages amounting to loss of earnings would not be full compensation for Mohindra for actual loss. We are reinforced in our view that the appropriate principle of damages under this Act is one of compensation, for losses or injury suffered, by the wording of section 134b(8)(c) of the Act which discusses compensation in terms of loss of earnings or other employment benefits:

(8) A determination under subsection (7) may include, but is not limited to, one or more of,

(c) an order directing the employer to reinstate in employment the complainant, with or without compensation, or to compensate in lieu of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer.

40. The amount of damages one would be entitled to under the Employment Standards Act does not directly relate to the damages necessary to compensate the injured party. Indeed, we note that in most cases, the compensation awarded by the Board to successful complainants exceeds the minimums set out in the Employment Standards Act. Those minimums do not attempt to address the specific injury or loss suffered by a complainant. It is that actual loss which is the focus of the Board's remedial orders.

41. Accordingly, the Board ruled that the guiding principle for assessing damages was compensation, and not the minimum periods of notice pursuant to the Employment Standards Act.

42. The Board shall remain seized with respect to any question of the appropriate compensation.

43. Finally, the company also argued that the complainant's delay in launching this proceeding was grounds to either dismiss the claim or reduce the damages he would otherwise be entitled to. As the letter of termination was not received by the complainant until July 26, 1988, and counsel for the complainant wrote to counsel for the company on August 3, 1988, indicating that legal action might be pursued as a consequence of that termination, we are satisfied that there was no undue delay in putting the company on full notice of the complainant's intention to hold the company legally liable for his discharge. Although the complaint itself was not filed until February 16, 1989, the complainant obtained alternative employment in August 1988 and does not seek reinstatement. We do not consider the delay between August 1988 and February, 1989 to be such, in the circumstances, that the complaint ought to be dismissed, or the amount of compensation (to which the complainant would otherwise be entitled) reduced.