Migrant farm worker wins historic ruling after being fired illegally
Employer tried to deport man who had raised health concerns
A Norfolk County farm fired a migrant worker and tried to send him back to Mexico as reprisal for raising concerns about a massive COVID-19 outbreak, the provincial labour board has found — a historic ruling highlighting the power imbalance between seasonal labourers and their employers.
In a decision issued earlier this week, the Ontario Labour Relations Board said Scotlynn Growers broke the law when it terminated Gabriel Flores Flores shortly after he spoke out about poor living and working conditions at the farm. Some 199 migrant workers at the multimillion-dollar operation tested positive for COVID, including Flores himself. His bunkmate died from the virus.
It is illegal to terminate or discipline any worker for raising health and safety issues. But advocates have long argued that it is difficult for temporary foreign workers to enforce this protection because they do not have permanent residency and can be sent back to their home countries for almost any reason. Flores’s lawyer John No said he believes this week’s ruling is a first for the province’s migrant farm workers.
“Mr. Flores is an exceptional person who fought back despite the odds,” said No of Parkdale Community Legal Services, adding thousands of migrant workers in Canada do not have access to legal support if they face exploitation.
Flores said he was happy with the ruling but said there was “still much more to do. The fact that I won this case does not mean that my co-workers had the same opportunity. That’s why the government needs to act and do more for us, guaranteeing us permanent residency so that we can defend ourselves and get the equality and the respect we deserve.”
In its decision, the board noted Flores was “particularly vulnerable” because he did not speak English and, as a seasonal agricultural worker, was reliant on Scotlynn for wages, shelter and transportation. The board found the farm should have taken even greater care in its dealings with Flores, since any reprisal could “strike a far deeper wound than might otherwise occur in the traditional employment relationship.”
Flores, who has travelled to Canada seasonally from Mexico for several years, said in testimony he shared accommodation with 13 other workers at Scotlynn. Having tested positive for the virus himself, he watched his bunkmate, 55year-old Juan Lopez Chaparro, fall ill in May. Flores said Chaparro told him he had fever and lung pain but did not immediately receive medical attention.
Eventually Chaparro was hospitalized, and the father of four died from COVID-19 complications in late June. In a meeting with Scotlynn supervisors informing workers of the death, Flores raised concerns about health and safety issues on the farm. The next day, he was terminated by Scotlynn’s founder and former owner, Robert Biddle, and told he would be sent back to Mexico.
Lawyers for Scotlynn argued the termination could not have occurred because Biddle was “on a boat” sailing to “a small island” on the day in question.
But the board said there was no corroborating evidence provided, and it described Biddle’s testimony as “evasive.” Biddle’s son Scott, who now runs the farm, did not testify in the proceedings.
After being fired, Flores left the farm with the help of a community member but could “no longer send money to his family in Mexico,” the board decision reads.
“He testified that this money is used for food, shoes and medical expenses. He explained that he suffers from stress and anxiety, that he feels sad and has emotional pain as a result of the dismissal.”
Karen Cocq of Migrant Workers Alliance for Change said Flores’s experience is no exception. “By denying workers permanent immigration status, the immigration system has given employers the tool with which to intimidate and punish workers for asserting their rights,” she said. “Workers know that, if they speak up, they can be deported, losing the livelihoods on which their families depend — the responsibility for change lies with Trudeau and the federal government to give full and permanent immigration status to all, and now.”
Lawyers for Scotlynn did not respond to the Star’s request for comment. When reached
Wednesday, Scott Biddle said he had not yet seen the ruling.
During hearings, Scotlynn argued Flores, 36, left the farm voluntarily and was offered an opportunity to return. But the board found the farm booked and paid for his return flight to Mexico, which employers are only required to do if they terminate a worker.
Scotlynn also failed to provide any documentation of his supposed resignation and could not reasonably expect Flores to return to work without assurances he would be safe, the board said.
“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,” the decision reads.
The Star has previously reported on a history of complaints made by Mexican migrant workers about Scotlynn Growers, describing pest infestations, bunkhouse floods and overcrowding. The farm has said it took all required precautions to protect workers from COVID-19.
“Everyone has a right to work in an environment that is safe, healthy and free from abuse,” said Alexander Cohen, press secretary for Immigration Minister Marco Mendicino. “The pandemic has brought to light some unacceptable gaps in the program and we are committed to fixing them.
“As the prime minister said, we need to reimagine our Temporary Foreign Worker program and how we can better protect workers — and that includes considering new pathways to permanent residence,” Cohen said.
More than1,300 farm workers have tested positive for COVID-19 in Ontario alone.
In his decision, labour board alternate chair Matthew Wilson said he accepted Flores “worked in close quarters with his coworkers with no ability to distance himself and was sincerely concerned about the risks of COVID-19.”
“The employer presented no evidence to the contrary despite calling several witnesses who could have testified to the working and living conditions.”
Scotlynn has now been ordered to pay Flores, who remains in Canada, $20,000 in lost wages, and $5,000 in damages for the distress caused by his dismissal — which Wilson described as “on the higher end of the spectrum of damages awarded by this Board.”
“While we are glad that the Board recognized that Mr. Flores suffered greatly, (he) cannot be truly and fully compensated for what he went through,” said No.
“To ensure that no migrant worker goes through what Mr. Flores did, we must change the system that permits vulnerability and exploitation to occur in the first place.”