Leif Stawnyczy v. Wal-Mart Canada Inc., 1999 CanLII 19985

[1999] OLRB REP. MAY/JUNE 561

3182-98-OH Leif Stawnyczy, Applicant V. Wal-Mart Canada Inc., Responding Party

Discharge - Health and Safety - Remedies - Employee of department store alleging that employer engaged in unlawful reprisal contrary to section 50 of Occupational Health and Safety Act ("OHSA") when employer discharged him for swearing at customer after customer assaulted him in employer's customer parking lot - Employer asking Board to, inter alia, direct employer to initiate criminal prosecution and to terminate employment of member of manage­ment of employer - Applicant including with his application examples of poor treatment by employer of its employees from internet web site - Assuming everything alleged by applicant to be true, Board satisfied that applicant treated badly and unfairly by responding party, but dismissing application for failure to make out prima facie case of violation of OHSA - Board also noting that relief sought by applicant going well beyond remedial authority of the Board

BEFORE: Harry Freedman, Vice-Chair.

DECISION OF THE BOARD; June 7, 1999

1. This is an application under section 50 of the Occupational Health and Safety Act, R.S.O. 1990, c.O- 1, as amended, (the "Act") in which the applicant seeks the following relief:

"That Wal-Mart acknowledge their wrong, prosecute the individual (on the video tape committing the assult [sic]), post notice in all their stores stating that verbally or physically assult [sic] on their staff will not be tolorated [sic], and finally apologize to our son, and co-operate with us to right the wrong done by terminating the managers involved."

The application states that it is made by the applicant who is 16 years old and is filed by the parents of the applicant.

2. The application and additional supporting material filed by the parents of the applicant set out in detail the events which transpired at the Brampton East store operated by the responding party on November 21, 1998. On that day, the applicant, who was an employee of the responding party, was pushing shopping carts through the parking lot of that store when, according to the applicant, a customer of the responding party began both verbally harassing and threatening the applicant. The applicant responded by swearing at that customer. Subsequently, the customer and the applicant entered the store whereupon the applicant sought out the assistance of the store's management. While the applicant waited at the store's customer service area, the customer again approached the applicant and pushed the applicant several times. The applicant then asked for store security to assist because the customer had assaulted the applicant.

3. The responding party's management asked the applicant to wait in a back room away from the customer after the applicant had explained to store security what had happened. The applicant was asked what had occurred and was specifically asked if he had sworn at the customer. The applicant replied that he had. The responding party dealt with the customer by, according to the applicant, giving him a gift certificate. The responding party terminated the applicant's employment about an hour later. (The applicant had been hired by the responding party following a series of interviews between the date he applied for employment in mid October 1998 and commenced employment on October 28, 1998.)

4. The applicant's parents were called to the store to pick up the applicant. They contacted the police because of the assault on their son and sought to have the customer detained pending the arrival of the police. No charges were laid by the police.

5. Counsel for the responding party, in the response filed, submits that the application does not disclose a prima facie case for the relief requested, principally on the grounds that the applicant had not sought to exercise or had exercised any right under the Act.

6. In a reply to the response, the applicant alleges that he had engaged in a work refusal when he had told a member of management that he "can't take this anymore". The applicant alleges that the responding party recognized the applicant's statement as a work refusal under the Act and thereupon terminated the applicant's employment.

7. The applicant filed with the Board, both with the application and with the reply to the response, a number of documents, including statements setting out contradictions and inconsistencies in the material filed by the responding party, character references for the applicant and examples of poor treatment by the responding party of its employees from an Internet web site (www.walmartsucks.com).

8. Sections 50(1) and 50(2) of the Act provides:

(1) No employer or person acting on behalf of an employer shall,

(a) dismiss or threaten to dismiss a worker;

(b) discipline or suspend or threaten to discipline

or suspend a worker

(c) impose any penalty upon a worker; or

(d) intimidate or coerce a worker,

because the worker has acted in compliance with this Act or the regulations or an order made thereunder, has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act.

(2) Where a worker complains that an employer or person acting on behalf of an employer has contravened subsection (1), the worker may either have the matter dealt with by final and binding settlement by arbitration under a collective agreement, if any, or file a complaint with the Board in which case any rules governing the practice and procedure of the Board apply with all necessary modifications to the complaint."

Before the Board can provide an applicant with a remedy under the Act for having had his or her employment terminated, there must be some basis for concluding that the employer's action was motivated, at least in part, by the employee having acted in compliance with the Act or an order under the Act, having sought enforcement of the Act or having provided evidence in a proceeding under the Act.

9. The applicant in his reply to the response suggested, for the first time, that he had engaged in a work refusal when he said that he "could not take it anymore". In my view, there is no possible basis for coming to that conclusion. At the time he made that statement, the applicant had been asked to wait in a room away from the customer who had been threatening him. He had completed his duties in the parking lot and had not been instructed to resume those duties at the time he made that statement. Thus, in my view, the applicant's assertion in his reply to the response is an attempt to fit within the protection provided by section 50 of the Act when the Act simply does not apply to the situation in which the applicant found himself.

10. It is clear that the applicant and his parents believe, quite reasonably, that the applicant had been badly treated by the responding party. Assuming that the applicant's description of the events of November 21, 1998 are true, the responding party's failure to assist the applicant when he was being abused by a customer both outside the store in the parking lot and again in the store is shocking. Nevertheless, the Board does not regulate all aspects of employment. Unless the conduct to which an application under section 50 of the Act relates involves a reprisal for exercising rights under the Act or carrying out duties under the Act, the Board does not have the authority to inquire into the matter.

11. In addition, the relief sought by the applicant goes well beyond the remedial authority of the Board. The Board is not in a position to direct an employer to initiate a criminal prosecution of a third party nor can the Board direct an employer to terminate the employment of a member of its management.

12. Section 50(3) of the Act gives the Board the discretion to determine whether it will inquire into a complaint alleging a violation of the Act. In exercising its discretion, the Board has regard to the nature of the complaint, the allegations made and the relief requested. Where the Board is satisfied that the allegations made in the application, assuming all of them to be true, do not disclose a violation of the Act or an entitlement to the relief requested, the Board will exercise its discretion to refuse to inquire into the complaint and dismiss it.

13. 1 am satisfied, based on only the material filed by the applicant (both the application and the reply to the response) and assuming everything alleged by the applicant is true, that the applicant was treated badly and unfairly by the responding party. The Board does not have the jurisdiction to remedy bad or unfair treatment where such treatment is not also a violation of section 50(1) of the Act. As the applicant has not set out any factual basis on which the Board could reasonably find that the responding party had acted against the applicant in reprisal for the applicant having exercised rights under the Act or for having given evidence in a proceeding relating to the Act or for having sought enforcement of the Act, the Board hereby exercises its discretion to refuse to inquire into this complaint since the application does not make out a prima facie case for the relief requested.

14. The applicant's remedy, if any, for the treatment he believes he has suffered at the hands of the responding party lies elsewhere. Nothing in this decision should be taken as foreclosing the applicant from seeking relief in another forum.

15. This application is dismissed.