A Mexican migrant worker’s legal win over the Norfolk County farm that fired him for speaking out about living conditions after a colleague’s COVID-19 death is being hailed as an unprecedented victory.
But the ruling alone won’t be enough to improve the conditions for thousands of workers who come here annually to do work Canadians won’t unless the federal government makes significant changes to its temporary foreign workers program, observers say.
The Ontario Labour Relations Board has ordered Scotlynn Sweetpac Growers, a farm where almost 200 workers tested positive with COVID-19 this summer, pay Luis Gabriel Flores Flores $25,000 in lost wages and compensation after Flores was fired when he raised health and safety issues at the farm following the death of his bunkmate, Juan Lopez Chaparro, 55, due to COVID-19.
“We’re happy with the decision but we know that this isn’t going solve much,” said John No, a lawyer at Parkdale Community Legal Services who represented Flores in the case.
“Even though this is the first case we know of where a migrant farmworker was able to go to the Labor Board and win, based on the fact that he was penalized for raising health and safety concerns, we’ve actually been hearing about this for decades.”
In its decision, the board reached the conclusion Flores was fired by Scotlynn’s former owner, Robert Biddle, who also accused Flores of speaking to the media, after speaking out about health and safety issues at the farm, which is illegal under Ontario’s Occupational Health and Safety Act.
Scotlynn Sweetpac Growers couldn’t be immediately reached for comment.
“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,” the board’s decision reads.
“Mr. Flores was particularly vulnerable as a temporary worker from Mexico who did not speak the language. He 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.”
Cases of migrant workers threatened or disciplined for raising concerns about their working conditions are not uncommon in Canada, said Santiago Escobar, a community worker with United Food and Commercial Workers Canada.
Escobar said among the changes needed include giving foreign workers the possibility of unionizing and making it easier for workers facing abuse to seek employment elsewhere and not be tied down to a single employer.
“We welcome this ruling and we want to believe that this precedent will improve working conditions and hopefully make employers think twice before behaving like this,” he said.
“But the reality is that if these workers don’t have a binding document, if they don’t have a collective agreement, it is very unlikely that employers will protect workers accordingly.”
As for Flores, he recently was awarded another legal victory, allowing him to obtain an open work permit that let him find a job at a factory, No, Flores’s lawyer, said.
“He’s happy and relieved, more than anything else,” No said. “And he really wants his case will help other farmworkers. That’s what he’s really hoping for.”