Re Pitman v Ichor Blood Services Inc., 2023 CarswellAlta 2060 (ALRB) is a decision of the Alberta Labour Relations Board (“ALRB”) upholding an Occupational Health and Safety (“OHS”) Officer’s dismissal of an employee’s Discriminatory Action Complaint (“DAC”). The DAC alleged her employment was terminated after she reported a health and safety concern, namely bullying and harassment.
A DAC is a possible option for dismissed or disciplined employees pursuant to sections 18 and 19 of the Occupational Health and Safety Act, SA 2020, c O-2.2 (“OHS Act”).
This case is important because it sets out the test for when an OHS officer will consider an employer’s treatment of an employee to fit within the definition of an illegal discriminatory action.
Facts
- The employee Rebecca Pittman was hired July 19, 2021 in the role of customer service and business development
- On October 7, 2021 the employee reported two incidents of bullying and harassment by a manager
- The employee’s employment was terminated on October 8, 2021 and the employee was advised the termination was due to the employee being unable to take feedback/instruction without becoming emotional and was not the right fit for the position.
- The employee filed a DAC on October 13, 2021, claiming that her employment had been terminated due to her filing the bullying and harassment complaint
- The employer denied the DAC allegations stating:
- there were no health or safety concerns,
- the reason for termination was not due to the incidents being reported,
- the reason for termination was performance concerns as the employee was “uncoachable, argumentative, and presented a very negative attitude towards her work”, and
- the employee was in a probationary period and subject to dismissal for any reason.
- The OHS Officer dismissed the Discriminatory Action Complaint (“DAC”) on May 11, 2022 after reviewing the three part test for a DAC and finding “the termination was for a reason other than the protected activity”, ie., not the alleged bullying and harassment.
Analysis / Conclusion
For reference the three-part test for a DAC is:
- there has been an act of compliance with legislation on the part of the worker (ie. reporting a safety issue),
- there was a disciplinary action taken against the worker (ie. termination), and
- there is a causal connection between the act of compliance and the disciplinary action taken.
The first two elements were made out in this case. It is the third element that is critical to establish a DAC. The ALRB stated,
The timing of the termination, and statement by the (employer’s) direct manager that she “ha[s] zero time to referee this type of unnecessary drama” shortly after the (employer’s) allegation of harassment was made, is some evidence that might support a conclusion the reporting of that allegation was a factor in the termination.
The ALRB considered the employee’s grounds for appeal and the applicable standard of review of an OHS Officer’s decision and concluded the Officer’s decision was reasonably justified and there was no basis to interfere with the findings of fact.
My Take
The ALRB’s review of the grounds for appeal reveals deficiencies in the employee’s stated grounds as well as the direction taken by the employee on appeal. The employee focused on establishing harassment and adducing new evidence on harassment. The ALRB found this to be irrelevant. The focus ought to have been on the causal connection between reporting a protected ground, the harassment, and the decision to terminate employment.
As noted above in Analysis / Conclusion, the first two elements were made out in this case. It is the third element that is critical to establish a DAC. The ALRB stated,
The timing of the termination, and statement by the (employer’s) direct manager that she “ha[s] zero time to referee this type of unnecessary drama” shortly after the (employer’s) allegation of harassment was made, is some evidence that might support a conclusion the reporting of that allegation was a factor in the termination.
This comment by the ALRB suggests a possible successful outcome had the grounds of appeal and submissions focused on the causal connection between reporting and the discipline. The ALRB noted that an exclusion from the definition of harassment is “reasonable conduct … related to the normal management of workers”. In other words, employers are not prohibited from taking corrective action such as coaching or training and the inability of an employee to accept corrective action should not be a basis for harassment.
The importance of this decision is to highlight a possible course of action an employee may take in the event of termination of employment. A DAC may be appropriate when an employee reports an unsafe or hazardous condition, and the employer then dismisses or disciplines the employee. The OHS Act serves to protect employees in the workplace including acts of retaliation by an employer in a situation such as whistleblowing unsafe workplace conditions. Careful consideration is needed of the three-part test for a DAC as well as an assessment of the employee’s performance and conduct, which may undermine the basis for the DAC. From an employer’s point of view, having policies regarding OHS compliance, procedures for reporting harassment and anti-retaliation policies will assist in navigating similar situations.
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