Ontario Labour Relations Board
0389-00-OH Elvira Cabrera, Applicant v. Pasta Amore Corporation, Responding Party.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; May 29, 2000
[1]. This is an application brought under section 50 of the Occupational Health and Safety Act R.S.O. 1990 ch. O-1 (the "Act"). Pursuant to section 50(3) of the Act the process for handling such complaints is governed by section 96 of the Labour Relations Act, 1995 S.O. 1995 ch. 1. One of the rules applicable to section 96 applications is Rule 46 which provides:
- Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all of the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing or consultation. In its decision, the Board will set out its reasons.
[2]. Pursuant to this rule, the Board has examined the complaint to determine whether it makes out a case for the orders or remedies requested. The Board's conclusion is that it does not for the following reasons.
[3]. The applicant's complaint is concisely set out in the application. She states "I was having problems with my back". As a result of a doctor's advice she advised her employer that she could no longer work in a cold environment and asked to be transferred to another area of the company. Her employer refused and told her that she would simply have to leave. It treated the termination of her employment as a "Quit". She seeks reinstatement to another area of the company and compensation for income lost.
[4]. Section 50(1) of the Act states as follows:
- (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.
[5]. In other words, the section prohibits employers from retaliating in any fashion against workers who have exercised any right under the Act. It only applies where a worker complains that she has exercised a right under the Act, or sought enforcement of the Act or a regulation thereunder, and her employer has negatively affected her employment as a result.
[6]. In this case the applicant does not allege that she attempted to rely on any provision of the Act or the regulations. She does not allege that her back problems had a workplace origin or were related to an unsafe or hazardous environment about which she complained. More importantly she does not allege that her employer was motivated by a desire to inflict any sort of penalty as a result of an exercise of her rights under the Act. Her employer's actions may well be in conflict with other statutes or with the applicant's terms and conditions of employment. They may be judged by others as, at the very least, inflexible and unfeeling. However, they are not the sort of activity proscribed by section 50 of the Act. That is, even if the Board accepts all of the facts in the application as true, and all of the facts in the response as untrue, those facts would still not disclose a violation of the Act.
[7]. Accordingly this application is dismissed.
"David A. McKee"
for the Board