Ontario Labour Board Confirms: Temporary Foreign Workers Are Protected from Employer Reprisals—Even When Immigration Status Is in Dispute

Apuntar Legal Services is pleased to share a significant victory before the Ontario Labour Relations Board (OLRB) involving the workplace rights of temporary foreign workers. In Christian Balubar v. 11536125 Canada Inc. (Symposium Café), Apolonio (Apol) Apuntar, Principal of Apuntar Legal Services, successfully represented the applicant in an application for review under the Employment Standards Act, 2000.

The decision reinforces an important legal principle: employers cannot retaliate against employees who ask questions about their employment rights—even where the employer attempts to justify its conduct by raising immigration status issues. For temporary foreign workers, the ruling confirms that workplace protections under Ontario law apply regardless of an employer's attempt to characterize the worker's immigration status.

The Background

Christian Balubar, a temporary foreign worker, accepted employment as a Food Service Manager with Symposium Café while his employer-specific work permit application was being processed. He worked from April to July 2024 at several restaurant locations owned by the employer.

Although he had signed an employment agreement providing for wages of $22 per hour, he was instead:

• paid in cash;

• paid less than the agreed wage;

• excluded from the employer's payroll;

• not provided wage statements; and

• treated differently from the employer's other employees.

An Employment Standards Officer later found that the employer had violated numerous provisions of the Employment Standards Act, including unpaid wages, overtime pay, vacation pay, public holiday pay, wage statement requirements, and the unlawful collection of immigration-related fees. Notably, the employer did not appeal any of those findings.

The Issue Before the Ontario Labour Relations Board

The only issue before the Board was whether the employer had unlawfully retaliated against Mr. Balubar for asserting his workplace rights.

Represented by Apolonio Apuntar, Mr. Balubar argued that after questioning why he was being paid in cash, why he was not on payroll, and whether he was legally authorized to work, the employer reacted by threatening to cancel his work permit application and directing that he receive no further work shifts.

The employer denied terminating him and maintained that he was never an employee.

The Board rejected that argument.

Workers Do Not Need to Quote the Law to Be Protected

One of the most significant aspects of this decision is the Board's confirmation that workers do not need to specifically refer to the Employment Standards Act in order to receive its protection.

Simply asking questions such as:

• Why am I being paid cash?

• Why am I not on payroll?

• Why am I not receiving pay statements?

• Why am I not being treated like the other employees?

may amount to exercising rights protected by the Act.

This is particularly important for temporary foreign workers who may not know the technical language of employment legislation but nevertheless seek fair treatment.

Immigration Status Does Not Eliminate Employment Rights

A central argument advanced by the employer was that Mr. Balubar was not legally authorized to work because his employer-specific work permit had not yet been issued.

The Board found that this argument missed the point.

The Employment Standards Officer had already determined that Mr. Balubar was an employee under the Employment Standards Act, and because the employer never appealed that finding, it became final. The employer could not use the reprisal proceeding to relitigate that issue.

The decision highlights an important distinction between immigration law and employment law. Even where immigration status is disputed, workers may still enjoy the protections afforded by Ontario employment legislation.

Timing Can Speak Volumes

The evidence showed that within days of Mr. Balubar raising concerns about his payroll status and employment rights, he stopped receiving work shifts.

The employer attempted to justify the decision by alleging performance concerns and operational reasons.

However, the Board reaffirmed that even if legitimate business reasons exist, an employer violates the Employment Standards Act if retaliation forms any part of the decision to penalize an employee.

This principle, commonly referred to as the "tainting doctrine," means that an otherwise legitimate business decision becomes unlawful if it is motivated, even in part, by an employee's attempt to exercise workplace rights.

The Four Questions That Won the Case

One aspect of this case that employment lawyers, paralegals and employers may find particularly helpful is the framework advanced on behalf of Mr. Balubar during the hearing.

In our submissions before the Ontario Labour Relations Board, we argued that four key questions established that an unlawful reprisal had occurred.

1. Was the alleged reprisal committed by the employer or someone acting on the employer's behalf?

The answer was straightforward.

The evidence established that the conduct was carried out by the employer's director, or alternatively by another director acting on the employer's instructions. Either way, the alleged actions were attributable to the employer for the purposes of section 74 of the Employment Standards Act.

2. Did the employer intimidate, dismiss, penalize, or threaten the employee?

We submitted that this element was satisfied because immediately after Mr. Balubar questioned his employment status and payroll practices, he was informed that he would no longer receive any work shifts. Whether characterized as termination or removal from the schedule, it was clearly an adverse employment consequence.

3. Did the employee engage in a protected activity under section 74?

The answer was yes.

Mr. Balubar sent an email to the immigration consultant—with a copy to the employer—raising concerns about:

• whether he was legally authorized to work;

• why he was being paid in cash; and

• why he was not officially on the employer's payroll.

We argued that these were not merely immigration questions. By seeking to be treated like every other employee and asking to be placed on payroll, Mr. Balubar was attempting to enforce rights protected under the Employment Standards Act.

4. Was there a connection between the protected activity and the employer's actions?

Finally, we argued that the timing spoke for itself.

Only days after raising concerns about payroll compliance and his employment status, Mr. Balubar lost all of his work shifts. The close temporal connection, combined with the surrounding evidence, established the necessary causal link between his exercise of statutory rights and the adverse action taken against him.

The Board ultimately agreed that the evidence established an unlawful reprisal. In its analysis, the Board confirmed that Mr. Balubar had engaged in protected activity, suffered a negative consequence, and that there was a sufficient connection between the two. It also emphasized that an employer cannot escape liability simply by asserting another reason for its decision if retaliation formed part of the motivation.

Damages Awarded

Although Mr. Balubar sought substantial compensation, the Board awarded damages for:

• the loss of the value of the job itself; and

• emotional pain and suffering arising from the unlawful reprisal.

In assessing damages for emotional suffering, the Board specifically acknowledged the vulnerable position of temporary foreign workers whose immigration status often depends upon a single employer.

Why This Decision Matters

This decision sends a clear message to Ontario employers.

Temporary foreign workers are entitled to the same workplace protections as any other employee.

Employers cannot:

• retaliate because an employee asks about wages;

• remove shifts because an employee requests payroll records;

• punish workers for seeking clarification about their employment rights; or

• rely on immigration status to shield themselves from obligations under Ontario employment law.

The decision also reassures temporary foreign workers that asserting their rights under the Employment Standards Act is protected activity.

A Significant Result for Temporary Foreign Workers

This case represents an important victory not only for Mr. Balubar but also for temporary foreign workers across Ontario who often find themselves in vulnerable employment situations.

Acting as counsel for the successful applicant, Apolonio Apuntar advanced the legal arguments that persuaded the Ontario Labour Relations Board that the employer had engaged in an unlawful reprisal. The Board ultimately granted the application for review, overturned the Employment Standards Officer's finding on reprisal, and ordered compensation in favour of the applicant.

Final Thoughts

Temporary foreign workers should never be forced to choose between protecting their employment rights and protecting their immigration status.

The Ontario Labour Relations Board's decision confirms that asking to be paid properly, requesting payroll records, or seeking clarification about workplace rights are protected activities under Ontario law. Employers who retaliate against workers for asserting those rights risk significant legal consequences.

At Apuntar Legal Services, we are proud to have represented the successful applicant in this important case. Our practice regularly assists temporary foreign workers, employers, and newcomers with matters involving the intersection of employment law and immigration law. This decision reflects our commitment to ensuring that vulnerable workers receive the legal protections they are entitled to under Ontario law.

If you are a temporary foreign worker who believes your employer has retaliated against you, or an employer seeking guidance on compliance with the Employment Standards Act, our office is here to help.

Editor's Note: Apuntar Legal Services acted as legal counsel for the successful applicant in this case before the Ontario Labour Relations Board.