Employer proved discipline not causally connected to reporting of safety issue
A hotel worker was disciplined and fired for his conduct following his assault by a supervisor, not for reporting the assault itself, the British Columbia Court of Appeal has ruled.
The worker was employed as a banquet server at a BC hotel. On Jan. 14, 2018, he observed his supervisor eating food that had been charged to a customer. The worker sent two emails to the supervisor about the food theft but didn’t advise management.
On Feb. 4, the supervisor assaulted the worker at work. The following day, an assistant manager met with them and the supervisor confessed to the attack, apologized, and promised it wouldn’t happen again.
However, the worker wasn’t satisfied and emailed the supervisor about it, as well as other employees at the hotel. On Feb. 19, more than two weeks after the assault, he formally reported the incident to the hotel’s human resources department.
Suspension to assaulter, warning to victim
The hotel investigated and suspended the supervisor for one week after the investigation determined that both the food theft and the assault on the worker took place. However, the hotel also gave the worker a written disciplinary warning about his failure to report the food theft in a timely manner and the numerous emails to his supervisor and the assistant manager after the matter had been resolved.
On March 19, two managers met with the worker and advised him of the discipline meted out to the supervisor but the worker refused to sign an acknowledgment of the written warning given to him or to review the hotel’s policies.
The next day, the worker emailed the general manager saying that he wasn’t happy with how the hotel was handling things and the general manager replied that he supported the HR department’s decisions and considered the matter closed. The worker sent another email inquiring about “possible next steps.”
On April 5, the hotel terminated the worker’s employment without cause.
Occupational safety officer
A few days after his termination, the worker met with an occupational safety officer from the workers’ compensation board (WCB) to discuss the events leading up to and around the supervisor’s assault. The officer investigated and issued an inspection report requiring the hotel to amend its bullying and harassment policy and to train staff on it.
The officer also advised the worker on how to file a complaint if he felt that the hotel had performed a “prohibited action” against him for exercising his rights in relation to occupational health and safety. A “prohibited action” is defined in the BC Occupational Health and Safety Regulation as “any act or omission by employers that adversely affects workers with respect to any term or condition of employment.”
The worker then filed a prohibited action complaint to the WCB, alleging that the hotel dismissed him in retaliation for having raised a health and safety issue related to the assault.
In February 2021, the WCB found that the worker had exercised an occupational health and safety duty by reporting the assault and the employer warned and fired him shortly thereafter. However, it also found that the hotel successfully demonstrated on a balance of probabilities that its actions were not motivated by the worker’s raising of safety concerns.
Discipline unrelated to reporting of safety issue
The WCB found that the warning and dismissal were for legitimate reasons not related to the reporting of the assault, but rather for the late reporting of food theft and “email badgering.”
The worker appealed the decision, but the appeals tribunal upheld the WCB decision that the termination was due to his failure to follow the hotel’s reporting policies and sending inappropriate emails.
The worker filed a petition for judicial review, alleging that he was denied procedural fairness and the appeal tribunal’s decision failed to satisfy the applicable standard of review.
The court found that the tribunal’s application of the standard of proof of “a balance of probabilities” was reasonable, as was the conclusion that there was no causal connection between the discipline and termination and the worker’s reporting of unsafe conditions at work, given the evidence presented.
Worker sought improvement of workplace culture
The worker appealed again, advising that he sought “liberation” from chronic bullying and harassment at the hotel and improvement of the workplace culture going forward.
The Court of Appeal agreed with the lower court that the correct standard of review applied and its role was not to second-guess the tribunal’s conclusions drawn from the evidence. In addition, the worker was unable to show any procedural unfairness in the tribunal’s process.
The appeal court noted that the safety officer’s order for the hotel to amend its bullying and harassment policy and provide training for staff helped the worker achieve his stated goal of improving the workplace culture and eliminating bullying and harassment at the hotel.
The worker’s appeal was dismissed. See Maung v. British Columbia (Workers’ Compensation Appeal Tribunal), 2023 BCCA 371.
