In Yaniv Froehlich v City of Toronto, the Ontario Labour Relations Board (“OLRB”) ruled that an employer’s response to an employee’s safety concerns did not constitute reprisal under Section 50 of the Occupational Health and Safety Act [OHSA]. Instead, the OLRB found the employer’s actions were linked to the employee’s insubordination following his request for the employer to address his safety concerns. This case raises important questions about the balance between employee rights and employer responses to workplace safety matters.

Background

The part-time unionized employee was an assistant instructor and ski patrol attendant at a ski and snowboard center operated by the employer, the City of Toronto. Neither of these roles were managerial in nature. During his probationary period, the employee attended a training session and signed an employee handbook that outlined the need for staff to report safety hazards and unsafe work procedures, as well as their right to refuse unsafe work under OHSA.

During his employment, the employee raised safety concerns to his supervisor, specifically about snowboards being rented without leashes and snowboard instructors and students not using leashes during lessons. Leashes attach the snowboard to the rider, preventing the snowboard from detaching and potentially injuring others. The employee noted none of the runaway snowboards resulted in a reported injury.

While the employer did not have a stand-alone mandatory leash policy, its employee manual includes a code that states, “Always use proper devices to help prevent runaway equipment”. The supervisor responded to the employee’s complaint by reminding staff about the importance of using leashes and instructing the employee to document any further incidents of non-leash use.

Despite the supervisor’s instructions, the employee escalated the situation by directly addressing ski instructors about the use of leashes and sending emails stating that he would enforce a mandatory leash policy, including denying access to the slopes, conduct that the employer contended was inappropriate and beyond his authority. His actions led to further confrontations, including an incident with rental office staff, where he accused them of not following policy.

Management met with the employee, who became irate, demanded a mandatory leash policy be implemented, and recorded the meeting without management’s knowledge. The manager ended the meeting and placed the employee on paid administrative leave until an investigation interview could take place with a union representative present. During the interview, the employee showed an unwillingness to respond to the investigation questions. After the meeting, the employee continued to send numerous emails and copying the City Councillor’s office on them, despite receiving direction from the employer that such conduct was not appropriate.  

The employee’s refusal to follow instructions resulted in his dismissal for insubordination.

The employee claimed that raising safety concerns regarding the use of leashes led to the employer engaging in reprisal, contrary to Section 50 of the OHSA. The alleged reprisals included:

• The supervisor threatened to discipline the employee when he requested the meeting with management;
• The administrative leave; and
• The termination of the employee’s employment.

The OLRB Decision

The OLRB ultimately found that the employer’s conduct did not amount to reprisal and, as such, did not violate Section 50 of the OHSA.

Threats of Discipline

The OLRB determined that the supervisor’s arrangement of the meeting between the employee and management did not constitute a threat of discipline, as it followed standard communication and reporting protocols. The meeting was informational rather than disciplinary, as the employee had challenged the supervisor’s position that the emails he sent to staff were not in accordance with protocol. The employee expressed a desire to have the matter addressed by someone more senior than the supervisor, leading to the meeting with the manager.

Administrative Leave

Although the OLRB found that the reason for the administrative leave was not clearly communicated to the employee, it concluded that the decision to place him on leave was not related to his actions under OHSA or his request for the employer to comply with OHSA. The OLRB emphasized that the employee informed management that he would communicate his views to any staff member he chose, disregarding the employer’s procedures regarding internal communications, and he advised the manager that he intended to continue defying the supervisor’s instructions. Additionally, the employee informed the manager that he was prepared to record his meetings with her.

The OLRB found that the employee’s overall behavior demonstrated a disregard for authority and an inclination to handle matters independently, without following instructions from his superiors. Given his disruptive conduct, his manager reasonably concluded that removing him from the workplace was the only effective way to address the situation.

Termination of Employment

The OLRB concluded that the termination was not a reprisal, as it was not linked to the employee’s performance of his duty to report risks to health and safety under the OHSA. Although the employee’s actions were driven by safety concerns, the OLRB found they went beyond the protections against reprisal outlined in Section 50(1) of the OHSA. The employee acted without authorization and directly defied his superiors’ instructions. The OLRB highlighted that the employee was still in his probationary period and should have anticipated that defying his superiors’ directions could lead to dismissal.

The OLRB held that the employer reasonably viewed the employee’s actions as insubordination and a “lack of respect for authority”. The decision to terminate the employment relationship was based on this insubordination, not on the initial reporting of safety concerns.

Although the employee was justified in his concerns about leash use, raising these concerns with supervisors and expecting action from his employer, the OLRB found that he overstepped by taking matters into his own hands, disregarding instructions from his supervisor and established workplace reporting and communication procedures. Under the protections provided by the OHSA, the employee could have exercised his right to refuse unsafe work until the risk was addressed or minimized.

While this case represents a favorable outcome for employers in that the employer’s conduct did not constitute reprisal, the OLRB criticized the employer for failing to clearly communicate what steps were taken to address the employee ‘s concerns about leash use, and for not following the investigation procedures outlined in the collective agreement.

Takeaways

• Section 50(1) of the OHSA protects workers who comply with the act by requesting compliance from their employers and seeking enforcement of the OHSA. However, the OHSA does not protect workers who disregard explicit instructions from their employer—unless a work refusal is justified—or who take independent action, even if done with safety concerns in mind.
• In this case, the employer did not clearly communicate its efforts to ensure leashes were being used. When employees report health and safety risks, employers should be clear regarding what is being investigated and what steps are being taken or have already been taken to address the safety issue.
• In this case, the employer did not follow the investigation protocol set out in the collective agreement. Employers should follow all disciplinary and investigation procedures, whether outlined in specific policies or collective agreements.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.