Termination after conversation with supervisor unrelated: Labour relations board
A worker who complained to her supervisor in a spontaneous conversation about being excluded from a fantasy football draft and other employee social events did not make a health and safety complaint that led to her termination a short time later, the Alberta Labour Relations Board has ruled.
The worker was a contractor working as a production accountant for oil and gas production for Rolling Hills Energy, an oil and gas exploration service based in Calgary. She joined Rolling Hills in October 2014 in a part-time role and eventually her duties grew to that of a full-time position.
The worker tried to get another employee involved in various functions to reduce her workload and told Rolling Hills about her increased work, but she didn’t say that it wasn’t manageable.
In 2015, the worker was invited by colleagues to participate in a National Football League (NFL) fantasy draft. She was interested but had difficulty accessing the website set up for the draft. She was embarrassed to ask for help, so she didn’t participate. Since the draft was usually based on the previous year’s participants, she wasn’t asked to join in 2016 or 2017.
Threatened to quit
In October 2017, the worker told her supervisor that she would have to leave the company because of a disagreement over alleged tampering with production data, but she would stay until the other employee was fully trained. She also discussed the possibility of quitting with another contractor.
According to the supervisor, the worker was upset about the issue and threatened to quit.
The supervisor agreed to investigate the matter and the worker met with senior management to discuss it. The worker agreed to stay on with Rolling Hills, although the issue wasn’t resolved to her satisfaction. The worker felt the issue was a safety concern, but she didn’t say so to her supervisor.
In September 2018, the worker overhead conversations in the office about the upcoming NFL fantasy draft. Certain employees and employees of other companies on the same floor were invited and the draft was to take place on office computers.
A Saskatchewan worker’s safety complaint was derailed by a signed release that promised no further complaints.
Worker felt snubbed
The worker spoke to a colleague about not being included in the draft, saying that she felt like “walking out” and she needed to get some air. She felt that being excluded from the draft was one of several events where she felt snubbed that made it difficult to work for Rolling Hills.
The company had no formal process for reporting incidents of bullying, so the worker wasn’t sure what to do. However, on Sept. 5, the worker encountered her supervisor in the washroom and started talking about not being invited to participate in the fantasy draft. She said there were other events from which she had been excluded and asked if the supervisor could fix it.
According to the worker, she washed and dried her hands and left the washroom after the conversation. However, according to the supervisor – who had just participated in the fantasy draft that day – she was caught off guard and the worker spoke to her “loudly and aggressively.” The supervisor laughed nervously and then apologized because she thought the worker had been joking, but the worker said she was serious and angry.
The supervisor observed that the worker was crying by the time she left the bathroom. Shaken by the encounter, she emailed the president and CEO of Rolling Hills that she had been confronted by the worker. She said that the worker was thinking about “walking” and was “seething mad” over being excluded from the NFL fantasy draft, saying that it happened all the time.
The supervisor and the president decided that the worker once again threatening to quit was a problem. With the earlier discussion of the worker’s workload, they decided a change was necessary.
A manager’s flippant comment about being fired after a worker’s safety complaint wasn’t discrimination in the entire context of the conversation, the Alberta Labour Relations Board ruled.
Company terminated contract
One week later, the president advised the worker that her contract was being terminated. He said that they had heard that she intended to walk out without giving two weeks’ notice, but the worker denied that was her intention.
The president gave the worker a letter terminating her contract on Oct. 15 and asked her to be involved in finding her replacement when she returned from a vacation that was coming up.
The worker filed a complaint with Alberta Occupational Health and Safety (OHS) alleging that she had been terminated for an OHS compliance issue – exclusion and isolation amounting to workplace bullying – and that Rolling Hills had no harassment procedure.
An OHS officer determined that the worker had made an act of compliance under the Alberta Occupational Health and Safety Act by reporting concerns about harassment and her termination was a discriminatory act, but it rejected the complaint on the basis that there was no causal connection between the worker’s termination and her reporting of harassment. The officer found that the termination was because of the company’s concern that the worker wouldn’t be able to keep up with her workload and was going to walk away from her job.
The worker appealed to the Alberta Labour Relations Board, arguing that there was “no chance” that she was going to just walk away. She pointed out that Rolling Hills didn’t begin looking for a replacement until she left and “the only logical rationale” for the termination was because of what she said to the supervisor in the washroom.
In Alberta’s OHS regime, if there’s a partial reason for adverse treatment that isn’t connected to a protected OHS ground, the protection doesn’t apply, says an employment and labour lawyer.
Legislative protection for reporting OHS concerns
The board noted that the OHS act’s protections were triggered when an employee engages in a protected activity under the act, which including acting in compliance with the act and “giving relevant information about work site conditions affecting the health and safety of any worker.” In addition, harassment was included as a workplace health and safety hazard under the act and the Alberta Employment Standards Code, said the board.
The board found that it was likely that the nature of the washroom encounter was coloured by each participant’s role and the reality of it fell somewhere between the account of the worker and the supervisor. Either way, the board accepted that it was “an impromptu exchange in the washroom where a somewhat emotional employee expressed upset to her immediate supervisor that she had been excluded from certain non-work events organized in the workplace and asked if the supervisor could deal with it.”
The board also found that nothing in the worker’s statements made it apparent that she considered the interactions she mentioned to be harassment. Also, the issues that the worker complained about – participation in certain workplace-adjacent social events – did not reach the level of “bullying… that a person knows or ought reasonably to know will or would cause offence or humiliation to a worker, or adversely affects the worker’s health and safety” as defined in the act, the board said.
A worker’s dismissal following a visit by an OHS inspector was a reprisal for the worker’s complaint, the Ontario Labour Relations Board ruled.
Informal ‘gripe’ not a report
The board added that the informal and spontaneous nature of the washroom conversation supported characterizing it as a “gripe about workplace relationships or office politics” rather than an intentional disclosure of an OHS concern.
“Taken collectively, the circumstances strain any reasonable interpretation of a ‘report’ of workplace conditions or ‘giving of relevant information about work site conditions affecting health and safety’ that the act can possibly have been intended to cover,” said the board.
The board disagreed with the OHS officer’s finding that the worker reported harassment concerns under the OHS act, determining that there was no act of compliance triggering the act’s protection. The worker’s complaint should have been dismissed on that basis, the board said.
As a result, the board saw no need to review the officer’s finding related to a causal connection. The worker’s appeal was dismissed. See Little and Rolling Hills Energy Ltd., Re, 2022 CarswellAlta 3645.
