Park Paving Ltd. v Mullins, 2024 ABOHSAB 13 (CanLII), is an appeal of an Alberta Disciplinary Action Complaint Report issued on April 4, 2024 (the “DAC Report”), whereby an Employer, Park Paving Ltd., was ordered to pay its former Employee, John Mullins, $2,800 in termination pay, plus general holiday and vacation pay.
Facts
- The Employee was a seasonal machine operator for the Employer.
- In October 2023, the Employee was working on a project for the Employer which required him to operate an excavator.
- Prior to operating the excavator, the Employee was required to complete a Field Level Risk Assessment (“FLRA”).
- On October 11, 2023, the Employee got into a heated argument with his manager, regarding the safety of the excavator. The Employee felt the excavator was unsafe to operate, as it did not have a thumb (a mechanical arm). The Employee refused to operate the excavator absent the thumb.
- At the end of the heated exchange, the Employee told his Manager that he “could take this job”, following which he returned the Employer’s iPad, and requested access to another work vehicle to gather his personal belongings (the “Employees Conduct”).
- Later that evening, the Employee sent a text message to his manager, asking him to work for the remainder of the season. The manager denied the request.
- The Employee did not attend his scheduled shift the following day.
- On October 12, 2023, the manager completed an Employee Termination Sheet stating that the Employee had quit.
- The Employee filed a complaint with Alberta Occupation Health and Safety (“OHS”), in accordance with the Occupational Health and Safety Act (the “Act”). The relevant portions of the Act are as follows:
In this Act,
(j) “disciplinary action” means any action or threat of action by a person that does or would adversely affect a worker with respect to any terms or conditions of employment;
18 No person shall take any disciplinary action against a worker by reason of that worker Acting in compliance with this Act, the regulations, the OHS Code or an order issued under this Act.
19(1) A worker who has reasonable cause to believe that the worker has been subjected to disciplinary action in contravention of section 18 may file a complaint with an officer within 180 days after the alleged contravention occurs, but not afterwards.
(2) An officer who receives a complaint under subsection (1) shall, subject to subsection (3), prepare a written report of the worker’s complaint, the investigation and the officer’s findings and shall give the worker and the employer a copy of the report.
(10) If an officer determines that disciplinary action has been taken against a worker who has acted in compliance with this Act, the regulations, the OHS Code or an order issued under this Act,
(a) there is a presumption in favour of the worker that the disciplinary Action was taken against the worker because the worker acted in compliance with this Act, the regulations, the OHS Code or an order issued under this Act, and
(b) the onus is on the person who contravened section 18 to establish that the disciplinary action was taken against the worker for a reason other than that the worker acted in compliance with this Act, the regulations, the OHS Code or an order issued under this Act.
- To summarize the above, the Employee was of the position that he had been subject to disciplinary action (termination) for bringing a safety concern to the Employer’s attention, in contravention of the
- OHS investigated the Employee’s complaint, in doing so the DAC Report asked the following questions:
Q1 Was acting in compliance with the OHS Act, regulation, or Code, or an order issued under the OHS Act?
Q2 Was subjected to disciplinary action as defined by the OHS Act?
Q3 If yes to one and two above, the investigation further considers if the [Appellant] established that the disciplinary action was for a reason other than the [Respondent] acting in compliance as described in section 18 of the OHS Act?
- The DAC Report concluded:
- That the Employee raised a safety concern to the Employer, in doing so, acted in compliance with the Act; and
- That the Employer terminated the Employee, after bringing the safety concern to its attention.
- The Employer appealed the decision, stating that the Employee’s Conduct amounted to a resignation.
Analysis / Conclusion
The ALRB was to determine whether the Employee’s Conduct amounted to a resignation or whether the Employee had been terminated.
The ALRB noted that the Employee’s Conduct could amount to a resignation, however, because the Employee displayed a willingness to return to work (when he told his manager he wanted to work for the remainder of the season), a resignation could not have occurred.
In other words, the employee had been terminated.
Altogether, the ALRB concluded that the DAC Report was reasonable.
My Take
The present case is interesting, as the Employee’s Conduct could have amounted to a resignation. However, when the Employee asked to return to work, this displaced his intention to no longer work for the Employer.
The ALRB may have come to a similar conclusion even without the Employee’s request to return to work, because the Employees Conduct occurred right after a heated argument. The caselaw has sometimes required Employers to give the Employee a “cooling off period” in these kinds of circumstances before asking whether he actually wanted to resign.
This case serves as another reminder for employers to think twice before acting on an employee’s resignation without first doing its own due diligence.
Bow River Law is a team of employment lawyers located in Calgary, Alberta. Bow River Law provides these regular legal blog articles for the purposes of legal news, education and research for the public and the legal profession. These articles should be considered general information and not legal advice. If you have a legal problem, you should speak to a lawyer directly.
