Alberta’s Occupational Health and Safety Act (Act) gives employees another avenue to pursue when they believe their employer has not treated them properly. Under the current Act, employees who are not subject to a collective agreement can file a disciplinary action complaint (DAC) with Occupational Health and Safety (OHS). DACs are decided by OHS officers and decisions can be appealed to the Alberta Labour Relations Board (the ALRB).
A recent ALRB case, Pitman v. Ichor Blood Services Inc.(Pitman),[1] contains a good reminder of the test for a DAC, as well as the applicable standard of review on appeal.
In Pitman, an employee filed a DAC against her employer (then called a discriminatory action complaint under the Act in force at the time). The employee asserted that she was terminated for reporting a health and safety concern. The employee was hired as a customer service and business development representative. While still in her probationary period, she had twice reported to her direct manager that she was bullied and harassed by another manager. The day immediately after she made the second report, the employer terminated her employment. The employer told the employee that the decision to terminate was based on an assessment that she was unable to take feedback or instruction from others without becoming very emotional and offended and was therefore an unsuitable candidate for the position. The employee then filed a DAC.
In dismissing the DAC, the OHS officer’s decision reviewed the three elements of a DAC:
- That the complainant engaged in a protected activity under the Act;
- That the complainant was subjected to disciplinary action; and
- That there was a causal connection between the protected activity and the disciplinary action.
The OHS officer’s decision confirmed that the employee engaged in a protected activity under the Act by reporting what she believed to be a health and safety concern that she was being belittled, bullied and harassed by a manager. Whether she was actually bullied and harassed was not central to this determination; just that she had reported that she was. The officer’s decision further identified the disciplinary action as the termination of the employee.
In accordance with what is now section 19(10) of the Act, where the first two elements of a DAC are found, the employer has the onus to prove that the disciplinary action occurred for a reason other than the protected activity. The OHS officer in this case reviewed the employer’s records and considered its explanation for the termination. Ultimately, the OHS officer determined that the employer had met its onus to show that it terminated her employment for a reason other than the protected activity. The OHS officer found that the employer’s records corroborated its position that it terminated the employee because she wasn’t a good fit given her defensiveness to coaching; not because the employee had made complaints.
Accordingly, the OHS officer dismissed the DAC. The employee appealed the decision to the ALRB, the appeal body under the Act. The ALRB dismissed the appeal, concluding that the OHS officer correctly identified the relevant elements of a DAC and that there was no basis to interfere with the OHS officer’s findings of fact.
The ALRB began its analysis by reviewing the applicable standard of review, which in this case was the standard of reasonableness. In other words, the question for the appeal was whether the OHS officer’s decision was reasonable in light of the material before OHS. The ALRB stressed that DAC appeals are “on the Record” of what was before OHS and are not appeals de novo. The ALRB will only accept new evidence in the appeal in exceptional circumstances and even then, the new evidence must be directly relevant to the issues under appeal, make a material difference to the outcome of the case and not have been readily available with ordinary diligence at the time the matter under appeal was decided.
In Pitman, one of the employee’s grounds of appeal was that the employer had not provided certain Microsoft Teams messages. She asked the ALRB that those messages be produced and included as new evidence to show the “demeaning and bullying” she experienced. The ALRB rejected this ground of appeal, noting that this proposed evidence focused on the question of whether or not the harassment occurred; a question that was not relevant for the DAC or the appeal.
The ALRB reviewed the remaining grounds of appeal and found that none of them had any chance of success at a hearing and summarily dismissed the appeal as being without merit.
Takeaways for employers
Since 2018, Alberta’s Acthas explicitly identified harassment as a potential workplace hazard and has obligated employers and employees alike to take steps in the prevention of workplace harassment. With the introduction of DACs in the Act, not only can employees make complaints to OHS of workplace harassment, they can also file a DAC if they believe have been terminated or suffered another form of reprisal or retaliation for reporting any such incidents.
We are seeing a steady increase in both types of complaints over the years and expect that trend to continue. Employees will often make complaints under the Act, while pursuing other remedies against their employer arising from the same incidents, such as human rights complaints or wrongful dismissal lawsuits. In defending DACs (and other types of complaints and claims), it will be important for employers to ensure they have compliant policies in place and that those policies are being followed and enforced. When responding to a DAC, employers should focus on the three elements of a DAC, detailed above. Having good records will often be critical for the employer to successfully meet their onus to show that the reason for the termination or other action was unrelated to the protected activity.
If you have any questions about your obligations under the Occupational Health and Safety Act, disciplinary action complaints or any other employment and labour questions, please reach out to Cristina Wendel and Jenny Wang.
[1] Re Pitman v Ichor Blood Services Inc., 2023 CarswellAlta 2060
