$17,000 reprisal award overturned

Ontario Labour Relations Board quashes employment standard officer's pain and suffering award in case where woman with back injury was fired after repeatedly refusing modified duties
|employmentlawtoday.com

The Ontario Labour Relations Board has overturned a decision by an employment standards officer to award more than $17,000 in damages for loss of employment and emotional pain and suffering to a worker.

The worker, Kamaljit Batth, was fired by Hunter Amenities International Ltd.,a Burlington, Ont.-based manufactuer of hotel amenities and spa products, on May 4, 2004. The employment standards officer said the termination was a wrongful termination and a reprisal in violation of s. 74 of Ontario’s

Employment Standards Act.

Background

Batth started working for Hunter Amenities on Oct. 18, 1994. Her work record was relatively free of discipline until Feb. 20, 2004.

On Dec. 20, 2002, a petition was prepared by several employees outlining a complaint about Esther Sherk’s management style. Batth signed the petition. The employer gave the petition to Sherk, absent the signatures. As a result of this petition, Sherk was given a written warning and was sent on a communications course for managers.

Batth said she though Sherk was “out to get her” because she had signed the position. But the board dismissed that argument. There was no evidence Baath, or any of the employees who signed the petition, had in any way been treated differently or discriminated against by Sherk or Hunter Amenities as a result of having signed the petition.

Back injury and modified work

On Feb. 20, 2004, Batth complained of back pain while at work. She did not explain exactly what had caused the back pain. She was allowed to leave work.

On Feb. 23 Batth said she still had back pain and did not report to work. The employer received doctors’ notes dated Feb. 20 and Feb. 26 stating that she had a very sore back and requesting that workers’ compensation forms be filled out.

The forms were filled out, her claim was allowed and Hunter Amenities offered her modified work.

But the employer had difficulties in getting Batth to perform the modified work. On March 24, she was given modified hand assembly work. She said she could not perform the task, even though it was very light work. She asked to be assigned other work, but it was not appropriate for her.

On April 8 she again said she was unable to perform modified work, even though the work was very light and appeared to fall within her restrictions. She was asked to go to her manager’s office for a meeting. During this meeting, she became upset, raised her voice and pounded her fist on the desk.

Batth felt Hunter Amenities did not understand the nature of her back injury or the restrictions, was not offering her appropriate modified work and was not treating her fairly. She became upset and her conduct reflected this, the board said.

Worker given training

On April 12, she was given training and was asked to sign off on a standard operating procedure. Though she had signed such documents in the past, she refused to sign this one. She was suspicious as to why she was the only worker who was being given training on this day and why she was the only one being asked to sign the document.

It was explained to her this was so because the other employees had been trained earlier when Batth was absent because of her sore back and the other employees had signed the standard operating procedure on that day.

But Baath felt the company was singling her out and setting her up for discipline and, ultimately, termination. She asked numerous questions and said she could not understand the document because she could not read English very well. She asked for a photocopy of the standard operating procedure and said she would sign it the next day.

But Hunter Amenities said employees are not allowed to take those documents home and denied her request. This fuelled her suspicions. Ultimately, she was sent home without having signed the document.

On April 13, she again refused to sign a standard operating procedure following some retraining. Due to her suspicions, she asked numerous questions. This caused the training to take much longer than what was normally required. She was suspended for three days because of this.

Employer’s frustration grows

On April 20 Batth was given modified work, which she refused to perform. The employer became frustrated with her conduct. Hunter Amenities felt it was offering her suitable modified work. But she resisted the work because she said it did not fit within her restrictions.

The board said the work appeared to fit within the restrictions provided by Batth’s doctor.

On April 21 there was a meeting between Batth and her supervisors. Hunter Amenities had received an updated restrictions form. Batth was asked questions about her medical condition. She said they would have to call her doctor if they wanted information about her medical condition. Batth felt she was being mistreated and became upset and raised her voice to her supervisors.

On April 22 Batth attended an

Employment Standards Act

fact-finding meeting that was being conducted with regards to another employee. At this meeting, which was attended by some Hunter Amenities supervisors, Batth said she was being treated unfairly by her employer.

Short-term layoffs announced

On April 23 the company held a meeting with all of its day shift production workers, including Batth. It told the workers that, because of a lack of work, some of them would be subject to short-term layoffs. Some employees were offered the option of taking voluntary vacation.

Batth was told that, due to the slowdown, the company had no modified work it could offer her at that time and she had to go home. Batth became suspicious of this, felt she was being mistreated and refused to leave without receiving written confirmation.

At her request the chief executive officer of Hunter Amenities was called in to discuss this with her. Batth was upset and argumentative and continued to refuse to leave. Ultimately, she had to be escorted from the premises.

On April 27 Batth said she was being harassed by a co-worker because of her back injury. The company investigated the complaint and concluded the co-worker had not harassed her. Hunter Amenities gave Batth a final written warning as a result of this incident.

On April 29 Batth was assigned suitable modified work. Again, she refused to perform the work. She said she did not think she could safely perform the work and therefore it was not suitable. She was sent home.

Following this, Hunter Amenities supervisors discussed her work performance, conduct and refusal to perform modified work and came to the conclusion that she should be let go. Her employment was terminated on May 4, 2004.

The board’s decision

The board said Batth was entitled to the termination, severance and vacation pay granted to her by the employment standards officer.

For her not to be entitled to such amounts, she would have had to have been guilty of “wilful misconduct, disobedience or willful neglect of duty that is not trivial and has not been condoned by the employer,” the board said.

It said this exemption has been interpreted and applied quite strictly. It pointed to previous decisions that underscored the fact the misconduct or neglect of duty had to be wilful.

“It is not sufficient merely to show that an employee was indifferent, casual, thoughtless or neglectful in the performance of, or in the omission to perform, his or her duties or responsibilities. These acts or omissions must be the product of some deliberate or intentional act.”

The board said Batth did not engage in “wilful” misconduct. It conceded that her behaviour in refusing work was no doubt very challenging and frustrating to Hunter Amenities, but said it was not done consciously and deliberately.

“It is possible she held an honest belief that she could not do the work,” the board said. “It is equally possible that Hunter Amenities honestly believed she could do the work.”

Board tosses out reprisal award

So while the board upheld the termination pay, it quashed the damages for loss of employment and emotional pain and suffering awarded by the employment standards officer.

Section 74 of the act states that no employer shall intimidate, dismiss or otherwise penalize an employee because the employee gave information to an employment standards officer or participated in a proceeding under the act.

The board said the employer’s decision to terminate her employment had nothing to do with the fact she spoke at the April 22 fact-finding meeting that involved another worker. Rather, she was fired because of her behaviour following her back injury and the employer’s perception that she had chosen to refuse to perform modified duties.

It said there was no evidence that anyone at Hunter Amenities said anything, or did anything, in response to her attendance at the April 22 meeting.

“The bare fact that she did attend at the fact-finding meeting, with nothing else, is not sufficient to draw the conclusion that her termination was influenced by the fact she attended at the fact-finding meeting,” the board said. “More is required to establish this conclusion. Nothing more was provided.”

The original order for termination, severance and vacation pay in the amount of $7,731.40 was upheld. The damages for loss of employment and emotional pain and suffering in the amount of $17,257.10 was rescinded.

For more information see:

Hunter Amenities International Ltd. v. Batth

, 2005 CarswellOnt 4174 (Ont. L.R.B.)

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