Migrant worker wins labour board case after being fired for speaking out about unsafe conditions amid COVID-19
Scotlynn Sweetpac Growers should not have fired the worker, the board ruled
The Ontario Labour Relations Board has ruled in favour of a migrant worker and against a farm that fired him for speaking out about health and safety issues at the facility amid a COVID-19 outbreak.
Luis Gabriel Flores Flores was fired from Scotlynn Sweetpac Growers in Norfolk County this summer after he spoke to the media about conditions he said put him and others at risk of contracting the coronavirus. At the height of an outbreak on the farm, almost 200 migrant workers tested positive for the virus, including Flores himself.
One worker, Juan Lopez Chaparro, 55, died.
"We have won this battle but we have to keep fighting for equal rights for migrants in this country," Flores said through an interpreter at a press conference today, imploring other foreign workers to speak out about dangerous conditions in their workplaces.
"Do not be afraid. Dare to raise your voice," he told them. "Dare to use this valuable weapon. It is important that we do not remain silent. United we are stronger."
Flores, who is from Mexico, worked at the farm and shared a bunkhouse with other workers. Chaparro, his bunkmate, was among many on the farm who were ill with COVID-19, but the only one who died.
There is no evidence that the employer had taken any steps to improve the working or living conditions or address the issues raised by Mr. Flores.- Ontario Labour Relations Board ruling
Flores was fired after Scotlynn's former owner, Robert Biddle, showed him a video of someone speaking to the media about conditions on the farm.
Scott Biddle, the current owner of Scotlynn Growers, could not be reached for comment.
Under Ontario's Occupational Health and Safety Act, it is illegal for employers to penalize, dismiss, discipline, suspend or threaten to take any of these actions against a worker who has refused unsafe work.
In its ruling, the labour relations board wrote that Flores was "particularly vulnerable."
"The power imbalance between the employer and Mr. Flores, as a migrant worker who does not speak English and relies on the employer for wages, shelter and transportation, should have been more carefully managed since a reprisal can strike a far deeper wound than might otherwise occur in the traditional employment relationship."
Flores "did not have access to the resources to minimize the pain and suffering, nor was he able to abate the injury suffered because of Scotlynn's reaction to his objections about health and safety at the farm," read the decision.
Scotlynn was ordered to pay Flores $20,000 in lost wages and $5,000 for the distress he suffered.
Dismissed for being 'vocal'
"It was reasonable for Mr. Flores to refuse to return to work," the board wrote in its decision.
"Mr. Flores had been dismissed after being vocal about the working conditions and the risks associated with COVID-19. After more than 190 workers had been infected (including Mr. Flores) and one coworker who succumbed to the virus, Mr. Flores could not reasonably be expected to return to the workplace and continue living in the bunkhouse without assurances that sufficient health measures had been taken to specifically address the risks of COVID-19.
"There is no evidence that the employer had taken any steps to improve the working or living conditions or address the issues raised by Mr. Flores."
Flores and advocates for migrant workers are again calling on the federal government to grant full and permanent immigration status to workers who come to Canada.
"We believe this is the first case that labour board has heard with respect to a migrant worker who was fired after speaking out regarding working conditions," said John No, an employment lawyer at Parkdale Community Legal Services, who represented Flores.
"People who work with migrant workers have known for decades — it's an open secret — that any migrant worker who speaks out is sent home, is penalized or fired, and is not invited back for the next season," No said.
"Our system doesn't allow for workers to assert their rights. Despite the victory, the same conditions that allowed Mr. Flores to be exploited and fired still exist today."
Speaking today in Toronto, Flores said the system must change so other workers are not afraid to speak out.
"We need a change in the system now," he said. "For now I am happy, but much remains to be done. My coworkers don't have the same opportunities as me. The government needs to do more, by guaranteeing permanent residency."