2110-01-OH Tony Osei Appiah, Applicant v. Torpharm Inc., Responding Party.
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; November 29, 2001
This is a complaint under section 50(2) of the Occupational Health and Safety Act, R.S.O. 1990, c. O. 1, (the “Act”) in which the applicant alleges that his discharge from employment by the responding party on July 30, 2001 violated section 50(1) of the Act. Section 50(4) of the Act provides that section 110 of the Labour Relations Act, 1995, S.O. 1995, c. 1, as am. applies to complaints filed under section 50(2) of the Act. The Chair of the Board authorized me pursuant to section 110(14)(a) of the Labour Relations Act, 1995 to sit alone to determine this matter.
The applicant alleges that his dismissal was unjustified and followed upon an altercation between him and Velimirka Bojanic, who the applicant refers to as “Veka”, on July 26, 2001. He asserts that during the midnight shift on July 26th he had a disagreement with Ms. Bojanic, a compliance technician, initially over who was responsible for ensuring verification of the in-process analysis of the product he was running. Later that same evening, after Ms. Bojanic came into the production area with street clothes and without safety glasses to take printouts from the in-line tests on the product, the applicant and Ms. Bojanic engaged in a discussion and then began yelling at one another over the printouts not being legible. The applicant alleged that Ms. Bojanic was rude, yelling at him to “get off me, get the fuck off me” which the applicant did not understand as he asserts that he was not too close to her. He also admits that he yelled back at her saying “get off me too.” Ms. Bojanic, according to the applicant, threw the printouts on to the floor and then left. The next night, the applicant was interviewed by Andrea Coopman, a human resources associate who, the applicant believed, was suggesting by her questions and comments that Ms. Bojanic was accusing him of sexual harassment. Following the interview, he was sent home and told not to come in for the start of his next shift.
The applicant asserts in his application that he was told to report in the afternoon of July 30th to meet his manager, Chris Hoffman and Ms. Coopman. At that meeting, Mr. Hoffman advised the applicant he was being discharged. The applicant asserts that a proper investigation of the situation had not been carried out and that he was the victim of false accusations. The applicant states on page 4 of his statement of facts:
I felt that I was unfairly treated, if they were to terminate me they would have to terminate Veka also, because it was an argument between us and has nothing to do with sexual harassment that I was accused of. I found the termination unsubstantiated, untrue, insensitive and uncalled for. I deem my termination racist, prejudice, discriminatory contrary to TorPharm policy on the TorPharm employee Handbook in which I did not have any of my employees committee representative present with me in the meeting with Chris Hoffman and Andrea. I did not also have the opportunity to tell my manager Chris Hoffman my side of the story in view of Andrea’s decision.
The applicant’s statement goes on to describe in some detail a number of instances in which other employees have had their employment terminated for raising concerns about health and safety issues or for refusing to work under unsafe conditions. The applicant alleged that he had received a written warning in the past for refusing to wash a “fluid bed” because it was unsafe to do so without receiving proper training and cited numerous instances of harassment, other unjustified warnings and unfair treatment by the responding party.
- The applicant’s statement of facts at page 10 states:
I would like to conclude that there is no substantial reason for the termination of my job. I feel that it was unfair and that I was mistreated….The investigation that HR said they have conducted which lead to my termination was unjust. No one could give me a straight explanation to why I was fired, I had to assume I was fired for sexual harassment because Andrea, the HR associate continuously ask me if I touched my private part and how far I was standing away from Veka, during my interview. I was verbally accused of sexual harassment, something that is a disgrace to my religion and me. This is absolutely something I did not do. Sexual harassment is an excuse for the company to get rid of me, because they do not like employees to mention that the company is working against cGMP and that employees often work in unsafe environments.
Thus, it appears as if the applicant acknowledges that his dismissal arose from the accusations, which he says are false, levelled against him by Ms. Bojanic
The responding party, in its response, provides a comprehensive and detailed response to the allegations made by the applicant. The responding party also asserts that the application fails to make out a prima facie case and requests, as a preliminary matter, that the application be dismissed.
The relevant portion of section 50(1)(a) of the Act provides:
(1) No employer or person acting on behalf of an employer shall,
(a) dismiss…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.
The applicant asserts that the responding party dismissed him unfairly, unjustly and on the basis of false accusations of sexual harassment. The applicant has not alleged any causal connection or nexus between his discharge and action he has taken in compliance with the Act or in seeking compliance with the Act.
The Board has on many previous occasions reviewed applications filed under section 50 of the Act to determine whether the allegations contained in the application establish a prima facie case of a violation of the Act. See, for example Horizon Plastics Company Ltd., unreported, Board File No. 1237-96-OH, decision dated September 16, 1996, Q.L. cite [1996] O.L.R.D. No. 3421; application for reconsideration dismissed, decision dated October 29, 1996, Q.L. cite [1996] O.L.R.D. No. 4110, application for judicial review dismissed, decision dated December 10, 1997, [1997] O.J. No. 5307; Ever-Reddy Duplicating Service Inc., unreported, Board File No. 3216-95-OH, decision dated January 23, 1996, Q.L. cite [1996] O.L.R.D. No. 310; Dough Delight Inc., [1998] OLRB Rep. May/June 405. Where the applications do not set out a prima facie case, they are dismissed.
The Board in Dough Delight Inc., supra, commented on the scope and breadth of section 50 and its approach to assessing the propriety of a complaint under section 50 of the Act when it wrote at paragraph 32:
Section 50 is not a mechanism by which an individual can complain to the Board about any concern over his or her health and safety in the workplace. Whatever the legitimate and serious concerns about health and safety an individual may have arising from workplace events, if those concerns do not arise in the context described by, and circumscribed by, section 50, then a complaint does not lie to this Board pursuant to that section.
In this case, the applicant did not identify any health and safety concerns that related to the decision taken by the responding party to terminate his employment. The Board in Ever-Reddy Duplicating Service Inc., supra at paragraph 14 explained the importance of establishing some connection between the termination and the exercise of rights under the Act:
The purpose of section 50(1) is clearly to preclude reprisals against workers for attempting to act in accordance and compliance with the legislation. To that extent it is fundamental that there exist a nexus between the actions purported to be in compliance with the legislation and the impugned reprisal.
The applicant does not allege that his termination was related to or arose from him acting in compliance with the Act or seeking enforcement of the Act. Rather, it is clear from the application that the applicant believed his termination related to and arose out of the dispute between him and Ms. Bojanic and the responding party’s belief, which the applicant asserts was entirely unfounded, that the applicant had acted inappropriately towards her on July 26, 2001. Even accepting the truth of everything that the applicant alleges in his application, I could not conclude that the responding party violated the Act.
Section 50(1) of the Act prohibits the dismissal of worker “because the worker has acted in compliance with” or “sought the enforcement of” the Act. The word “because” in section 50(1) of the Act is critical to the assessment of whether the applicant has made out a prima facie case. The New Brunswick Court of Appeal had occasion to comment on the interpretation of legislation virtually identical to section 50(1) of the Act in Brunswick Mining & Smelting Corp. v. Savoie, (1991), 1991 CanLII 8239 (NB CA), 83 D.L.R. (4th) 521 where the court, in describing the issue, wrote at page 524:
The Act seeks to prevent a company from using sanctions, coercion or retaliation against an employee in the form of discriminatory action because the employee has attempted to enforce health or safety rights under the Act. Dismissals and layoffs are included in the definition of "discriminatory action" under section 1. Under s. 24 discriminatory action or any attempt at discriminatory action is prohibited. The question is whether there must be a causal connection between the discriminatory action, in this case Savoie's dismissal, and one's having sought the enforcement of the Occupational Health and Safety Act. Both the statute and the case law indicate that there must be a causal connection between the dismissal and the attempt to enforce the provisions of the Act.
The court then emphasized the need for a causal connection between the discharge and the exercise of rights under the Act at page 526:
I agree with the appellant's submission that the word "because" in s. 24 of the Act requires a causal link between the discriminatory action complained of and the attempt on the part of the employee to seek the enforcement of the Act. What the Act intends to deal with is discriminatory action which results from the employee seeking enforcement of the Act or Regulations.
In my view, the applicant has not alleged any facts from which one might conclude that his termination arose out of him seeking enforcement of or acting in compliance with the Act nor has he even asserted that his discharge was motivated by his exercise of rights under the Act.
The applicant has not, in his application, made any allegations that could establish a violation of section 50 of the Act. In other words, I am satisfied, after reviewing and considering only the application and accepting all of the facts alleged in it, there is no reasonable likelihood that the applicant can establish a violation of the Act based on the allegations he has made in his application. Therefore, the application does not make out a prima facie case. (See Corporation of the County of Brant, [2000] OLRB Rep. Nov./Dec. 1106 at 1108; J. Paiva Foods Ltd., [1985] OLRB Rep. May 690 at 691.)
This application is dismissed.
“Harry Freedman”
for the Board