Alberta worker’s retaliation complaint sees mixed results

An Alberta worker’s verbal warning and suspension were not related to a discrimination complaint she filed against her employer, but the decision to move her off the same shift as her husband constituted retaliation for the complaint, according to the Alberta Human Rights Tribunal.

Olga Way-Patenaude worked as a privy truck driver for Clean Harbors Energy and Industrial Services Corp., a technical and industrial field service provider for various industries. After she was hired in July 2012, she began working on Syncrude’s Aurora Mine near Fort McMurray, Alta.

Way-Patenaude’s husband was also hired at the same time. During their job interviews, they asked that they both be placed on the same crew so they could have the same schedule — drivers were assigned two to a truck, working six days in a row, with three days on the day shift followed by three days on the night shift and then six days off — to which the company agreed as it generally made efforts to keep couples on the same schedule unless operational need took priority. The interviewer told them he would “do his best” to keep them on the same shift, although Way-Patenaude and her husband would not have taken the job without a guarantee that they would always be on the same schedule.

Within a year, Way-Patenaude felt Clean Harbors was discriminating against her on the basis of her age and gender because other employees who were male or younger were given wage increases that she didn’t receive. On July 28, 2013, she filed a complaint with the Alberta Human Rights Commission.

Verbal warning, suspension followed complaint

Shortly afterwards, Way-Patenaude and her husband went on vacation. They were scheduled to return to work on Aug. 30, but their travel was delayed. Way-Patenaude called her supervisor to notify him that they wouldn’t be at work on Aug. 30, to which the supervisor responded “OK, get back safe.” The supervisor didn’t say anything about discipline, so she didn’t make alternate arrangements to get back in time. Clean Harbor’s attendance management policy (AMP) stipulated that all absences must be pre-approved, but it stated that culpable absenteeism was when an employee failed to provide adequate notice of absence or failed to call in to report their absence.

They were able to return to work two days later, on Sept. 1. At the end of their shift, they were called into a meeting where the supervisor gave them each a letter stating that they were being verbally warned for a “late/no show, and/or sick leave” for Aug. 30.

Way-Patenaude found the meeting stressful and was shocked at the warning. She was angry that the supervisor didn’t warn her about the discipline and called him her “so called supervisor” in a raised voice. Her husband was also upset and raised his voice in the meeting.

Clean Harbors suspended both of them pending an investigation into their conduct in the meeting. Ultimately, they weren’t disciplined, although the company referred to its “Disruptive Behaviour Policy.” They were paid for the three days they were suspended while the investigation was conducted.

A few days later, Clean Harbors contacted Way-Patenaude and informed her that both she and her husband were being transferred to different crews and would be on different schedules — they would no longer have the same days off and they sometimes would be working opposite shifts. The company advised that all the crews were being reshuffled to accommodate “business need.” In this case, one of the drivers resigned and two others were on leaves of absence, requiring a redistribution based on driver competencies established through prior work performance and interactions with them.

The operations manager said that he had taken into account the fact that the Patenaudes were a couple, but he felt the needs of the business took priority in this case. The new schedule was implemented after one attempt to reorganize the employees with no revisions.

Way-Patenaude filed another human rights complaint, alleging retaliation for her first complaint and differential treatment under the AMP.

The change to the shift schedules had a significant effect on Way-Patenaude and her husband, turning “our lives bottom up.” In addition to not being able to spend time with family on days off together, she was worried about her husband being home alone when she was working due to various medical conditions he had. She went on medical leave due to stress in October 2014.

The tribunal noted that Way-Patenaude went on vacation shortly after filing her initial complaint, so her verbal warning and three-day suspension at the end of August 2013 came on one of her first days back at work after she submitted it. This “coincidental timing” led to an inference that both were linked to the discrimination complaint, said the tribunal.

The tribunal found that the AMP’s reference to culpable absenteeism made reasonable for Way-Patenaude to believe she simply had to call in to report her absence without discipline and understandable why she was surprised to be disciplined.

However, the tribunal also found that the response of the supervisor when Way-Patenaude called in to report her absence due to her travel delay wasn’t that of approval but more of an acknowledgement. Way-Patenaude’s absence wasn’t entirely from matters beyond her control, as she acknowledged that she could have made alternate arrangements in order to arrive in time if necessary. From the company’s perspective, the verbal warning served to clarify to the Patenaudes that the expectation going forward was that the standard was “absent due to blameworthy reasons,” not simply whether the employee provided notification of the absence. This gave the warning a rational connection to Way-Patenaude’s conduct.

The tribunal also determined that the three-day suspension wasn’t related to the human rights complaint. The evidence indicated Way-Patenaude was upset and acted out during the disciplinary meeting, and Clean Harbors was entitled to investigate potential misconduct. There ended up being no discipline for that misconduct and both Way-Patenaude and her husband were paid for the three days of work they missed.

Vague reasons for shift change

However, the tribunal found that there was no good-faith and legitimate reason for the shift change. It pointed out that the schedule change came after management conducted its investigation into the conduct of Way-Patenaude and her husband, so they were aware of the discrimination complaint by then. Email evidence showed that the operations manager knew of the complaint by Sept. 4, a couple of weeks before the shift change was implemented. In addition, one of the leaves of absence used to support the shift change ended in October 2013 and no one in management could identify when the employee resignation happened.

Clean Harbors couldn’t provide a credible explanation for the change — the references to a resignation and leaves of absence were vague and the company implemented its first draft of the reorganization without considering alternatives. In addition, the judgment of driver competency was at least partly based on the manager’s anecdotal encounters with drivers rather than documented skills.

“Clean Harbors’ explanation for both the timing of as well as the changes to the crew assignments and shift schedules themselves was implausible and self-serving,” said the tribunal in finding that the change was a deliberate response to the discrimination complaint. “At the same time, it was clear that Clean Harbors was aware that the crew assignments and shift schedules were important to [Way-Patenaude] and that a change to them would have negative consequences for her.”

The tribunal dismissed the parts of the retaliation complaint related to the verbal warning and suspension but upheld the part related to the shift change. Clean Harbors was ordered to pay $10,000 in damages.

For more information, see:

• Way-Patenaude v. Clean Harbours Energy and Industrial Services Corp., 2020 AHRC 41 (Alta. Human Rights Trib.).