Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2014 More Cases Worker's dismissal after OHs inspector's visit a reprisal: Board An OnTArIO WOrker's dismissal was a reprisal by her employer for an oc- cupational health and safety complaint, the Ontario Labour Relations Board has ruled. Abigail de los Santos Sands was hired in September 2013 by Moneta Marketing So- lutions, an investment and marketing com- pany in ornhill, Ont., to handle human resources duties. As part of her responsi- bilities, de los Santos Sands sometimes had to meet with angry investors who came to Moneta's office. Sometimes the investors were so angry, de los Santos Sands and the receptionist felt threatened. De los Santos Sands brought her con- cerns to her boss and suggested Moneta should develop standardized procedures for dealing with employee complaints about workplace violence and harassment. Her ef- forts were rebuffed and she was told that if she had time to think about such issues, "she wasn't doing her job." In December 2013, de los Santos Sands got in touch with the Ontario Ministry of Labour to explain that she felt threatened in her work environment and there were no employer policies in place for such circum- stances. e ministry offered to send an in- spector to Moneta to check things out, but de los Santos Sands was worried she would be fired if she requested an inspector. e ministry advised that the province's Oc- cupational Health and Safety Act (OHSA) protected her from reprisals for such re- quests, but de los Santos Sands decided against making one. On Jan. 20, 2014, the receptionist at Mo- neta called the ministry and it sent an in- spector to the company's workplace. e receptionist then called de los Santos Sands to tell her, but de los Santos Sands refused to answer when the receptionist asked if she had also called the ministry. e inspector completed a report and or- dered Moneta to develop a policy for dealing with workplace violence and harassment. e next day, Moneta terminated de los San- tos Sands' employment. When she asked why she had been terminated, she was told "ev- erything was fine up until the ministry came in yesterday and that pushed them over the edge." De los Santos Sands asked if the com- pany thought she had called for the inspector, but she was just told that after the inspector left her termination had been ordered. De los Santos Sands didn't receive any termination pay and she filed a complaint of reprisal under the OHSA, as well as an employment standards complaint and a discrimination complaint. e board found de los Santos Sands raised a health and safety concern under the OHSA, as she legitimately felt threatened by angry and aggressive clients. She also clearly informed Moneta of her concerns. Also, Moneta didn't provide any legiti- mate explanation as to why de los Santos Sands' termination took place so quickly after the inspector's visit. Regardless of the fact it came after the receptionist — and not de los Santos Sands — contacted the Min- istry of Labour, Moneta was aware she had raised concerns and had requested exactly what the inspector ordered. is led to the conclusion her termination was "at least in part" because she wanted Moneta to adopt a formal policy to deal with workplace ha- rassment and violence, said the board. e board noted that the common rem- edy for such a dismissal for reprisal was re- instatement, but de los Santos Sands didn't want to return to work for Moneta and she had found another job one month after her termination from Moneta. erefore, Moneta was ordered to pay de los Santos Sands four weeks of wages and vacation pay for the period from her termination to her starting the new job — totaling $4,799.97. See de los Santos Sands v. Moneta Market- ing Solutions Inc., 2014 CarswellOnt 8488 (Ont. Lab. Rel. Bd.). EI operating account, and as a result the $57 billion surplus was absorbed into the federal government's general revenues. Two more Quebec unions — the Conféderation des syndicats nationaux and the Fédéra- tion des travailleurs et travailleuses du Québec — filed a motion demanding the new 2010 act be declared unconstitutional because of the failure to maintain the surplus funds from the EI program for EI purposes. e unions sought a declaration that any change in the mechanism for setting premium rates may not disregard the sums collected in the EI ac- count and that the balance in the account may not be erased and allocated. e Quebec Superior Court dismissed the motion, finding EI premiums were either a payroll tax or regulatory charge that, once collected, were part of the federal government's revenues and "not a debt owed to the (EI) program." erefore, they did not have to be used for the EI program, said the court. e unions appealed to the Quebec Court of Appeal, which set aside the lower court's decision. e appeal court found the unions' challenge of the 2010 act was more concerned with the actual elimination of the EI surplus, rather than for what what the government used it. e federal government appealed to Canada's top court on the basis that the issue was covered in the Supreme Court's 2008 decision that allowed surpluses to be reallocated, though the specific surplus at issue didn't yet exist. It also argued the EI account was "merely an accounting tool" that recorded EI amounts. All actual transactions, such as EI premium payments or distribution of benefits, were conducted through the government's consolidated revenue fund, not the EI account, said the government. e Supreme Court noted that the unions' underlying premise was that "a balance in the EI account is a debt owed by the consolidated revenue fund to the EI account" and the constitutional validity of the act depended on the transfer of that debt to the new operating account established under the 2010 act. e Supreme Court found that, as established in an earlier decision, the EI account was not a trust fund, but rather "forms part of Canada's government accounting, and premiums form part of the government's revenues." e top court agreed with the Quebec Superior Court that "as government revenues, the amounts collected as contributions to the EI pro- gram can therefore be used for purposes other than paying benefits." e consolidated revenue fund from which actual EI transactions were made did not have any debt to the EI account, and the Quebec Court of Appeal erred in finding there was a direct debt, said the Supreme Court. "(In earlier decision CSN v. Canada), the court held that the connection between the program and the premiums is a factor that can be considered in determining the nature of the levies," said the Supreme Court. "But it is wrong to say that the validity of these levies depends on the existence of that connection." Because the underlying premise of the motion was based on a debt to the new EI account which the court found did not exist, the Supreme Court determined the action had no rea- sonable chance of success and dismissed it. See Canada (Attorney General) v. Confédéra- tion des syndicats nationeaux, 2014 SCC 49 (S.C.C.). EI account part of general revenues « from sUPreMe on page 1

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