Migrant farmworker wins reprisal claim against employer; need for permanent immigration status

MIGRANT farmworker, Luis Gabriel Flores, who was fired for speaking to the media after testing positive for COVID-19, won his hearing at an Ontario provincial labour tribunal against multi-million dollar Scotlynn Farms. Migrant worker advocates have long argued that lack of permanent immigration status gives inordinate power to employers, and makes it impossible for workers to protect themselves.

Flores, whose bunkmate Juan Lopez Chaparro died from COVID-19, was able to win his case as a result of substantial support from Migrant Workers Alliance for Change and his fellow co-workers; however, most other workers don’t have the same options. The decision comes as the second wave of COVID-19 is hitting across Canada, and outbreaks on three farms in Ontario are threatening migrant farm workers’ lives and livelihoods again. At least 85 workers are currently infected. 

“We should not have to resort to these legal measures, most migrant workers don’t have that opportunity. My case is not the only one and many are far worse. We need a change in the system now to prevent these injustices – we need full immigration status for all now, so that we can defend ourselves and get the respect and equality we deserve,” said Flores on Thursday.

Prime Minister Justin Trudeau agreed in September’s Throne Speech that migrant workers deserve “full support and protection”, yet there is still no plan to regularize the over 1.6 million migrants in Canada, like Flores, without permanent resident status. 

“Migrants that grow our food, take care of our families and support our communities are facing abuse and exploitation by employers and shut out of basic services because they have been denied permanent resident status,” says Syed Hussan, Executive Director of Migrant Workers Alliance for Change. “Mr. Flores’ case is the tip of the iceberg of exploitation caused by immigration rules. While the labour board has found Scotlynn guilty, it is the Federal government that is truly responsible; we call on Prime Minister Trudeau to stick to his word and ensure full and permanent immigration status for all migrants right now.”

The Ontario Labour Relations Board granted Flores $25,000, including $5,000 for pain and suffering. In his decision, Alternate Chair Matthew Wilson wrote, “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. 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.”

John No, employment lawyer at Parkdale Community Legal Services, who represented Flores, added, “Scotlynn Farms thought that they could act with impunity and get rid of “troublemakers” by merely putting them on the next plane out of Canada. But Mr. Flores is an exceptional person who fought back despite the odds. As a result, we believe that this is the first time a migrant farm worker has won a reprisal case at the Ontario Labour Relations Board. Mr. Flores was lucky that he was able to stay in Canada and find legal and other forms of support. There are thousands of migrant workers in Canada who are not that lucky. We must change the system that permits their vulnerability and exploitation to occur in the first place. If we truly want a solution that will benefit everyone, then the federal government must provide stable permanent immigration status to all migrants.”

Read the full OLRB decision here

BACKGROUND

(According to Migrant Workers Alliance for Change)

  • Flores started coming to Canada in 2014. He is a father of two children from Mexico.
  • This year he arrived on April 18 and was in quarantine for two weeks at a hotel. 
  • He then started work at Scotlynn Farms in Norfolk, Ontario, picking asparagus, where housing and working conditions were very poor. It was impossible for workers to physically distance, workers had no Personal Protective Equipment (PPE), and they were overworked. Scotlynn Inc did $75 million in sales in 2019. 
  • A couple of weeks later several of Flores’s colleagues started showing COVID-19 symptoms. Flores and others repeatedly requested medical attention for them. 
  • They were told by supervisors that information had been shared with management but no medical attention was provided to sick workers and no testing was done. 
  • When one worker was so ill he was unable to get out of bed, one of Flores’ colleagues called a contact off the farm to send an ambulance. 
  • As a result of that ambulance visit, five workers were hospitalized and testing was finally done at the end of May. Nearly 200 workers at the farm tested positive, including Flores. Scotlynn Farms is the largest recorded migrant farmworker COVID-19 outbreak to date. 
  • While in quarantine, Flores spoke about labour exploitation and substandard housing with the Globe and Mail newspaper on June 10, 2020, and Toronto Star on June 13, 2020, in tandem with a report released by the Migrant Workers Alliance for Change (MWAC). He was one of several workers who spoke out. The report received coverage on CTV, Global, CBC, Toronto Star, Globe and Mail and many other outlets. The report is accessible at www.MigrantWorkersAlliance.org/UnheededWarnings 
  • At 11 p.m. on June 20, Flores and other farmworkers were informed that his bunkmate, Juan Lopez Chaparro, had died of COVID-19. 
  • Flores spoke up at that time to supervisors insisting that more could have been done for Chaparro, demanding an explanation from the employer and that the farm take responsibility for what happened. 
  • At 11 a.m. on June 21, Robert Biddle Jr., founder of Scotlynn Farms, arrived at Flores’ bunkhouse. Biddle showed Flores an image of a video from a press conference by MWAC which featured a colleague of Flores. He told Flores that he would be sent back to Mexico first thing the next morning. Flores insisted that he was not the person in the video. 
  • Biddle left and a foreman reiterated the employer’s decision, and informed Flores that the employer was looking for three other workers they suspected of speaking to the press. 
  • Flores left the farm that day, and has been housed by a supporter in coordination with Migrant Workers Alliance for Change.
  • On July 30, Flores filed a reprisal claim at the Ontario Ministry of Labour and visited the office of Federal Immigration Minister Marco Mendicino to call for full and permanent immigration status for all. See Flores’ full letter here.
  • The first hearing in Flores’ case was on September 14. At the hearing, Robert Biddle claimed he was “on a boat” sailing to “a small island” on the day he had fired Flores. More here
  • The second day of Flores’ hearing was on October 13. That day, Amador Alcantara, nephew of Juan Lopez Chaparro and who also worked at Scotlynn, testified in support of Flores as the primary witness to the events of June 21. Alcantara appeared remotely from Mexico, speaking out publicly for the first time. More here
  • During the course of the case, his story was featured nationally and internationally, including in a CTV W5 documentary and the New York Times.
  • One in 23 people (over 1.6 million people) in Canada are migrants, refugees, or undocumented. They are unable to access essential services, assert basic rights or access emergency supports. Employer reprisals against them, as experienced by Flores, are common.
  • Over 350 organizations and 10,000 people have signed a petition calling for full and permanent immigration status for all: https://migrantrights.ca/status-for-all/. A visual petition by over 200 migrant workers calling for status was posted on Prime Minister Trudeau’s office in advance of Flores’ case: https://twitter.com/MWACCanada/status/1284122949549785093

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