Written by David Doorey
In a complaint being litigated this week at the Ontario Labour Relations Board, Gabriel Flores Flores, a seasonal agricultural worker from Mexico, alleges he was fired in reprisal for raising concerns on behalf of himself and his coworkers about the employer’s failure to protect them from COVID19. The background is explained in this Toronto Star article by the great labour reporter Sara Mojtehedzadeh.
The complaint was filed on behalf of Mr. Flores by Parkdale Community Legal Services. It alleges that the employer’s actions violated Section 50 of the Occupational Health and Safety Act, which prohibits reprisals against an employee who raises concerns about workplace safety. Flores claims he was terminated either because he raised concerns at an employee meeting with management or because the company believed he was one of several employees who had complained publicly about working conditions.
One way to explain what happened to Mr. Flores is that he was terminated for raising a collective concern about working conditions on behalf of himself and coworkers and therefore he was terminated for engaging in concerted activities at work. An interesting question that I have been talking about for years is whether Ontario law protects employees from reprisals for doing just that. In this case, the employee was raising a concern about an issue covered by the OHSA and so he can access the anti-reprisals section in that legislation. However, employees often raise concerns about matters that are not safety related, such as pay, hours of work and scheduling, among other topics.
Does Ontario law prohibit an employer from terminating an employee who speaks up on behalf of coworkers?
The twist here is that Mr. Flores is an agricultural worker and successive Liberal and Conservative Ontario governments have clearly demonstrated that they have little patience for agricultural workers who dare to act collectively. The same is true of Liberal and Conservative federal governments, who have created a system of temporary seasonal workers that ensures those foreign workers stay in line and not cause their Canadian employers grief. For example, temporary agricultural workers have no labour mobility and are entirely dependent on one employer for their right to work in Canada, a feature of our legal model that discourages the workers from complaining, let alone mobilizing to act collectively. These governments want a passive and docile agricultural workforce.
In Ontario, agricultural workers are excluded from the Labour Relations Act and are instead covered by a watered down version of freedom of association found in the Agricultural Employees Protection Act. Neither the OLRA or the AEPA obviously apply here, however. In contrast to the American National Labor Relation Act, which protects (in s. 7) a broad right of employees to engage in “concerted activities for mutual aid and protection”, including a right to protest dangerous working conditions by striking, the OLRA protects only a right to form or join a “trade union” and to engage in “trade union activities”. As far as I know, there is no “trade union” involved in Mr. Flores’ story.
The AEPA protects a right to “assemble” and to form, join, and engage in the lawful activities of an “employees’ association”. The AEPA defines an “employees’ association” as “an association of employees formed for the purposes of acting in concert.” Here we see the deliberate importation of the American language of “concerted activity”. There is decent argument that by terminating Mr. Flores for raising concerns about working conditions on behalf of his seasonal agricultural co-workers, Scotlynn Sweetpac Growers (the employer) violated section 8, 9, or 10 (the unfair labour practice provisions) of the AEPA. Such a finding would trigger a broad remedial power under the legislation that permits the Tribunal to determine “what if anything” the employer “shall do” to remedy the violation. I can imagine arguments for creative remedies.
Of course, a successful ULP complaint under either the LRA or the AEPA would require the applicable tribunal to adopt a broad, purposive interpretation of the statute that captures organic and sometimes spontaneous “concerted activity” by nonunion workers that has not formalized into an effort to form or join an “association” or “trade union”. If an unfair labour practice complaint were filed in a case such as this, involving termination of an employee for raising collective workplace concerns, the labour tribunal would be confronted directly with the question of the scope of our statutory protections for concerted worker action.
If that tribunal were to rule that our collective bargaining statutes provide no protection at all for workers fired for raising collective workplace concerns unless they act through the vehicle of a formal “association” or “trade union”, it would expose a glaring hole in Canada’s model of freedom of association. I wonder whether the absence of any protections from employer reprisals for exercising collective voice about working conditions amounts to a substantial interference in the right to collective bargaining and to strike, which is now guaranteed by the Charter of Rights and Freedoms. I will be interested to see how a tribunal deals with an argument like this in the test case that I anticipate will come along in the near future.
I explore these arguments in a new paper published in the University of Toronto Law Journal called “David Beatty’s Redemption (And Other Thoughts on the Future of Labour Law)”.
David Doorey, “Do Ontario’s Collective Bargaining Laws Protect Migrant Worker Dismissed for Raising Collective Workplace Concerns?” (September 15 2020): http://lawofwork.ca/?p=13005