In Woodtke v. Wise Owl Day Care Centre, the Applicant filed an application under section 50 of the Occupational Health and Safety Act (the “Act”), alleging that her termination was a reprisal for seeking to enforce her rights under the Act. The Applicant was terminated without cause after the Respondent learned that she had shared confidential information with a former employee. The Applicant argued that she had shared this information to assist the former employee in filing a harassment complaint, and thus, she was acting in accordance with the Act when the information was shared.
Section 50 of the Act states:
50 (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.
The Applicant argued that she was acting in compliance with section 32 of the Act when she shared the confidential information, which provision requires employers to post and maintain workplace violence and harassment policies in order to assist workers in filing harassment complaints. The Ontario Labour Relations Board (the “Board”) refused to accept such an argument, noting that although section 32 places an obligation on employers to provide the requisite information to employees, the Applicant was not the former employee’s employer. Further, it is notable that the information she disclosed was not the employer’s harassment policy. Thus, the Board held that there was no authority granted by the Act for the disclosure by the Applicant of confidential information to a former employee.
Further, the Applicant had not raised any concern about workplace harassment that she observed or experienced at the hands of the Respondent, and did not otherwise make it known that she was seeking to enforce a right or act in compliance with the Act prior to her termination. Therefore, the Applicant was unable to establish any nexus between why she was terminated and a right or obligation she was seeking to enforce under the Act.
In dismissing the application, the Board commented as follows regarding the appropriate use of section 50 of the Act:
Section 50 of the Act is not intended to serve as an alternative avenue for individuals to challenge the fairness of their termination or discipline simply because the word “harassment” is peripherally involved in the facts leading up to a termination. This is especially true in situations where it is apparent on the facts of the application that the applicant’s ability to challenge the fairness of their termination under the Employment Standards Act may be limited because they were paid their statutory notice of termination. In this panel’s opinion, to expand the intent of the protection against reprisals in section 50 of the Act to encompass situations such as the one in this case, trivializes the purpose of the prohibition against reprisals in the Act.
This decision provides an important reminder that while the Act affords employees significant protections from harassment and from reprisals by employers on account of employees seeking to enforce those protections, a reprisal requires a direct connection between the termination of an employee (or some other negative consequence), and the attempted enforcement of their rights under the Act. Here, the Board made clear that it will not allow section 50 to be used as an alternate mechanism to challenge without cause terminations.