Complaints about mould, mice led to reprisal against worker in Cambridge

Michael Pereira v Cambridge Pallet Ltd.

In January 2021, the Ontario Labour Relations Board ruled that Cambridge Pallet illegally fired Michael Pereira after he raised health and safety concerns with the employer. A three-judge panel with the Ontario Superior Court of Justice upheld the decision, ordering the company to pay Pereira over $45,000 in compensation.

Facts

• Pereira was employed by Cambridge Pallet as a general labourer.
• On April 2019, he was involved in an altercation with another employee and received a one-day suspension.
• On February 13, 2020, Pereira received another two-day suspension for being involved in a confrontation with a different employee.
• Pereira disputed his second suspension by sending a number of texts to his operations manager and raising concerns about unsafe working conditions. These conditions included black mould, fungi, rodents, and mushroom on rotting boards.
• As the concerns went unaddressed by his employer, Pereira contacted the Ministry of Labour.
• On February 19, 2020, Pereira was due to report to work. He showed up to work only to be terminated and escorted out of the building.
• Pereira filed a complaint with the Ontario Labour Relations Board, claiming that he was fired because he raised safety concerns and contacted the Ministry of Labour.
• Cambridge Pallet took the position that he was fired as he engaged in two violent incidents during a nine-month period.

The Court’s Decision

At the time of termination, Pereira was given no other reason for his dismissal other than “things were not working out”. The only events that happened between February 13, 2020, the time when Pereira was suspended, and February 19, 2020, the day when Pereira was terminated, is that Pereira texted his employer expressing his objection to his suspension, as well as his concerns regarding health and safety in the workplace. Given that Pereira was let go shortly after his complaint, the employer had to prove that there was no connection between the termination and the complaint.

Cambridge Pallet engaged in illegal reprisal, the Labour Relations Board found. Pereira’s behaviour was not serious enough for termination; his behaviour warranted a suspension instead. The termination was “tainted” and caused in part by Pereira expressing his concerns with respect to unsafe working conditions.

Ontario Superior Court upheld the ruling following an appeal, agreeing that Pereira was fired in part due to reporting health and safety concerns.

Lessons for Employees

• Terminations due to conduct: Your employer can fire because of poor behaviour in the workplace, including disputes with coworkers. This is called a termination without cause, and you must be paid full severance in accordance with our laws. What a company can’t do is automatically fire you “for cause” because of poor conduct. They must apply appropriate discipline first, such as warnings and suspension, before using the “capital punishment” of employment law. If you are fired for doing something wrong at work, contact our experience team immediately so we can determine if you are owed compensation.
• Reacting to reprisals: Employees are protected against reprisals when making complaints about health and safety concerns in the workplace. An employer should not retaliate against an employee that makes such a complaint. If you have identified hazards at work, you can file a complaint with the Ministry of Labour. It is important that you document issues thoroughly. Talk to an employment lawyer at Samfiru Tumarkin LLP if you are unsure how to proceed. We can review your unique situation and carefully walk you through your options. You may be able to pursue a constructive dismissal, and resign with compensation.

Lessons for Employers

• Discipline before dismissal: An employer must make the effort to discipline an employee before they can be fired for cause – and without a severance package or Employment Insurance. The termination will likely be considered one “without cause” if the proper steps aren’t taken.
• Don’t fire someone because they raised concerns: It is illegal to let an employee go – or punish them – because they have raised concerns about their employment rights. If you take punitive action against someone for filing a complaint, you may face additional damages.