Worker's aggressive behaviour when discussing concerns with management breached employer's policies
“If someone is bringing forth health and safety concerns, they’re not permitted to engage in harassing, aggressive, or unwelcome conduct that’s in violation of company policies, or might itself be in violation of occupational health and safety (OHS) legislation.”
So says Laura Dunnigan, a labour and employment lawyer at Mathews Dinsdale in Calgary, after the Alberta Labour Relations Board upheld a determination that a worker’s suspension and firing was for his behaviour towards management in pursuing safety concerns, not for raising those concerns in the first place.
The worker was a machine operator-pipe straightener for Endurance Technologies, a pipe supplier for the oil and gas industry based in Calgary. He was hired in 2017.
The worker reported health and safety concerns regarding a near-miss incident in 2022 when a pipe struck a worker. The incident was addressed in safety meetings, but the worker didn’t believe that the discussions led to worthwhile changes.
In April 2023, the worker reported a strong chemical smell near a wash station to the health and safety supervisor, but nothing appeared to be done.
On July 21, 2023, the worker had a conversation about pipe straightening with Endurance’s director of operations. The worker was explaining that damages on manufactured pipes were the result of flaws in the company’s processes when he became agitated and raised his voice. The director of operations tried to walk away and the worker pursued him, accidentally bumping him.
Suspension, counselling
Following the incident, Endurance required the worker to participate in an employee counselling meeting on July 24. He was also suspended for five days until July 28.
On July 24, before he attended the counselling session, the worker approached the company’s health and safety supervisor in the parking lot to express his disappointment with what he felt was neglect of his earlier safety concerns.
The discussion became heated and the worker persisted as the supervisor got into his vehicle. The supervisor questioned whether the worker had written up his concern and said that he “would do everything to protect his job from jeopardy.” The worker said they were having a “straightforward man-to-main conversation” and he wouldn’t report the supervisor. However, he continued to argue and another manager escorted the worker away.
Endurance investigated both incidents, obtaining witness statements and interviewing the worker, who didn’t dispute that the argument and physical contact with the director occurred. The worker argued that the company didn’t consider the context of the incidents, as he was trying to report long-standing safety issues.
Endurance determined that the worker’s behaviour in the two incidents breached its Prevention of Workplace Violence and Harassment Plan and Code of Ethics. Although the worker was free to share his health and safety concerns, his actions during his discussions with management were inappropriate.
Termination for cause
On July 27, Endurance terminated the worker for cause, outlining the breach of its policies in the two incidents.
“From reading the decision, it sounds like this employer acted very swiftly when it found out about the two incidents of misconduct,” says Dunnigan. “They had an investigation report and a disciplinary meeting report with notes, and then witness statements that could corroborate the employer’s side of events.”
The worker filed a disciplinary action complaint (DAC), alleging that Endurance suspended him and terminated his employment for reporting workplace hazards, contrary to the Alberta Occupational Health and Safety Act (OHSA). The OHSA prohibits employers from taking disciplinary action against a worker for acting in compliance with the act or its regulations.
An OHS officer investigated and referred to the three-part test to determine if the employer breached the OHSA – was the worker acting in compliance of the OHSA and its regulation, was the worker subjected to disciplinary action, and was there a link between the disciplinary action and the worker acting in compliance with the OHSA?
The officer found that the first two elements of the test were met. The worker acted in compliance with the act by raising workplace health and safety concerns, and the suspension and termination were disciplinary actions.
No link between discipline, act of compliance
However, the officer found that the third element wasn’t met. The termination letter indicated that the worker was terminated for his inappropriate actions during the arguments that breached the company’s policies. As a result, the officer concluded that the suspension and termination were for the worker’s inappropriate conduct that breached Endurance’s policies and not his acts of compliance.
This type of DAC under OHS legislation involves a narrow assessment, says Dunnigan.
“When you look at what was demonstrated on the record, [the worker] was aggressive, he was threatening, he admittedly engaged in physical contact,” she says. “He believed that there was context that the employer wasn't looking at, but really the only assessment is, can the employer show that it chose to discipline or terminate as a result of something unrelated to that compliance under the act?”
The worker appealed the officer’s decision, maintaining that the suspension and termination were connected to his raising of safety concerns and the overall context of his actions in relation to the safety issues wasn’t considered.
The board noted that the OHS officer didn’t specifically identify the July 21 conversation with the director of operations or the parking lot incident as acts of compliance. Based on the evidence, the former conversation was more about addressing quality control issues in the manufacturing of pipes, said the board.
However, the board found that the parking lot conversation with the health and safety supervisor was related to the worker’s safety concerns, as that was the topic of conversation and it was with the relevant official. As a result, the July 24 incident could be considered an act of compliance, the board said.
Employer’s records supported basis for discipline
Regardless, the board noted that the OHS officer was satisfied that Endurance’s stated grounds for discipline was the worker’s unacceptable behaviour in the two incidents. It also found that there was sufficient evidence to support that basis for discipline.
The board noted that the worker didn’t deny “the essential core of what occurred in those incidents,” and instead argued that his actions were misconstrued or their context wasn’t considered. There was no doubt that physical contact and a heated argument occurred on July 21 and the worker’s behaviour on July 24 escalated to the point where another manager had to intervene, the board said.
If an employee has a legitimate safety concern, it’s not a license to engage in conduct that would be offside of the employer’s policies or OHS legislation, says Dunnigan.
“There are other avenues that can be accessed to make sure concerns are heard, but it's not grounds to engage in serious misconduct,” she says. “This was a great place to delineate those two differences - one is bringing forward concerns and the other is engaging in misconduct when your concerns are not met in a satisfactory way to you.”
The board also noted that its role was not to determine if the progressive discipline issued was appropriate, but only whether it was related to OHSA compliance. As Endurance was able to prove that it wasn’t, the OHS officer’s decision was reasonable, said the board in dismissing the worker’s appeal.
“It’s noteworthy that the Alberta Labour Relations Board are not experts in OHS, so when they’re reviewing decisions of these experts, it’s going to be on a standard of reasonableness,” says Dunnigan. “And [the board] made it pretty clear how much deference it’s going to give to OHS officers in their areas of expertise, so whether you're the employer or the employee who is appealing a decision under OHS legislation, it's an uphill battle already, because the officer’s report is going to be given a lot of deference.”
The outcome of the case isn’t really surprising given the evidence on record that the worker engaged in serious misconduct, not once but twice, according to Dunnigan.
“In order for the employer to demonstrate that its corrective action wasn’t influenced or in any way connected to the employee’s compliance under OHS legislation, it had to have really good documentation, and this employer seems to have had that,” she says. “This is another reminder that, when incidents in the workplace happen, you need to act swiftly and investigate, but also document, document, document so that if your corrective action comes under attack, whether in an OHS or another forum, you have good grounds to stand on.”
The case is also a reminder to ensure that employees are trained on the processes for bringing forward health and safety concerns, adds Dunnigan.
“Employees need to know who they can come to if they have safety concerns and the appropriate process for those concerns to be managed and dealt with – make sure people have a clear understanding so that you don't have employees approaching supervisors in the parking lot.”
