'When you look at that entire context, it wasn't really a threat,' says lawyer
A manager’s reference to ending the employment relationship in a heated discussion with a worker over workplace health and safety wasn’t discriminatory, the Alberta Labour Relations Board has ruled.
It could have been, but the employer’s attempts to clarify the situation diffused an interpretation that the threat was serious and tied to the worker’s safety complaint, says Tim Mitchell, a labour and employment lawyer with McLennan Ross in Calgary.
“The general manager got into a bit of a heated debate – which is never a good thing for an employer to do – rather than walk away, calm down, and carry on a rational conversation when cooler heads prevailed,” he says. “But it was nice to see that the employer was still offering the employee a choice in terms of a path forward rather than bringing the employment relationship to an end.”
Concerns over indoor smoking area
Woodbridge Holdings operates a full-service automotive repair shop in Sherwood Park, Alta., that specializes in diesel repair and mechanical/electronic work. The shop contained 25 service bays and a designated smoking area inside the building.
The worker joined the shop in 2012 as an automotive technician.
In the fall of 2020, the worker raised concerns about people smoking indoors. He had several discussions with the general manager and the controller, and they came up with three options: the worker could continue working in his current area and they could move the smoking area farther away; the worker could move to another side of the building where he had previously worked, which would allow him to avoid the employees who smoked and the smoking area; or they could move him to an area of the shop with three other non-smoking employees that would be the furthest point from the smoking area.
The discussion became heated with raised voices and the worker refused all of the options. He was then told that he could call the province’s occupational health and safety authority (OHS), but the shop was compliant and he “might as well quit.”
On Dec. 2, the worker had another discussion with the general manager, who told him that they had told the smokers to smoke at the back. This wasn’t acceptable to the worker as he didn’t want any smoking inside the building.
Woodbridge’s efforts to find a compromise were reasonable, according to Mitchell.
“They took a middle-ground approach, trying to say, ‘We’ll ensure that employees smoke only in one designated area,” but that wasn't good enough for the employee in this particular circumstance.”
The worker said that Woodbridge could wait for OHS or “Give me my papers.” The manager asked if he was quitting and said “I’m not firing you; You don’t want to follow the rules? Then quit.” The worker replied that the shop was the one not following the rules, he wasn’t quitting, and said, “Let OHS come.”
The general manager said that they would leave the issue to OHS and would accept the decision of the OHS compliance inspector, but added that the worker was required to follow operational rules.
However, the worker advised that he would not come into work if smoking continued in the building. After more than two weeks of absences, the worker on Dec. 18 told Woodbridge that he considered himself to have been constructively dismissed due to the failure to eliminate indoor smoking in the workplace.
The worker jumped the gun by essentially resigning before the OHS officer came to investigate, since management agreed to the assessment and told the worker the company would accept the officer’s findings, says Mitchell.
“It wasn't reasonable for the employee to resign, because it was clear that the general manager had agreed that the OHS officer should come in and they would live with that decision.”
OHS inspection
The worker filed an OHS complaint saying that he was given a choice to accept things as they were, move to the back of the building, or he’d no longer have a job. He also alleged that he was told that if he made an OHS complaint, he would be dismissed.
An OHS officer investigated. The worker outlined his complaint about smoking and his conversations with management. He also said that he was told that he would have to sign documents stating he would comply with whatever rules they established, he would be monitored closely, and he would no longer be receiving a raise or bonuses.
Woodbridge said that management had spoken to the worker several times about his tardiness – records indicated that the worker had been late for work 253 times in the past year – and the comments about rules and monitoring were because of that. Neither side provided evidence that a raise or bonuses were discussed.
Woodbridge also said that in the discussion about the worker calling OHS, things were said “in the heat of the moment out of frustration and fatigue of going back and forth with [the worker] and constantly being met with refusals.”
Warnings not motivated by safety complaint
The OHS officer determined that the worker was activity protected under Alberta Occupational Health and Safety Act when he reported a health and safety concern, and Woodbridge took discriminatory action when it threatened job loss if he contacted OHS and said there would be changes to work hours and work conditions. However, the officer also found that Woodbridge’s discriminatory action was for reasons other than the worker’s protected OHS complaint.
The worker appealed the decision to the Alberta Labour Relations Board.
The board found that, given the evidence on the worker’s chronic tardiness, it was reasonable for the OHS officer to find that management’s comments on compliance with the rules was in response to that tardiness and not the OHS complaint.
However, the board disagreed that the comments about a possible job loss in the event of an OHS complaint was a discriminatory action. The board said that “context is essential” and the comments weren’t a threat in this context. It pointed to the fact that the discussions continued after the potential discriminatory comments, they discussed alternatives, and management expressed a willingness to have an OHS officer come to the workplace to provide directions for compliance.
In addition, after the comments were made, the manager made it clear that the worker was not being fired and it would abide by any OHS directions. It wasn’t reasonable for the worker or the OHS officer to see the comments as a “real” threat in the context, said the board.
Context is key
While threats of job loss associated with reporting a matter to OHS are always problematic, the board’s analysis of the general manager’s comments was deeper than the OHS officer’s, says Mitchell.
“When you're looking at the issue of whether there's a threat, you have to look at it using a contextual analysis, and the board ultimately found that there was no real threat because of the circumstance – there was a heated exchange between the employee and the general manager where the general manager lost his cool and made the flippant comment,” he says. “But when you look at the entirety of that contact – which was that they continued to have discussions [afterwards] — the general manager continued to discuss alternative places where smoking could occur and where the employee could work.”
“When you look at that entire context, it wasn't really a threat.”
The board determined that the OHS officer’s overall finding was reasonable and dismissed the worker’s appeal.
Although Woodbridge was saved by the general manager’s continued conversations with the employee after the comment about job loss was made, Mitchell cautions that employers should never threaten an employee with ending the employment relationship in the face of an OHS complaint and decision-makers will take such comments seriously, whether they are flippant or serious.
“[Employers should] ensure that [they] stay calm in the face of heated discussions and if they don't have a good appreciation of the legal considerations surrounding an issue, that they simply tell the employee that they will come back to it, research the issue, and then engage in calm, collected conversation,” says Mitchell. “Employers should avoid heat-of-the-moment conversations where tempers could flare and unfortunate statements could be made.”
Context is everything in the determination as to whether or not there is discriminatory action, he says.
“The board and the courts will engage in a contextual analysis of the facts, so it’s really important for the employer to act reasonably without engaging in conduct that could be seen as threatening, because you're putting yourself in a very precarious position if you do that.”
See Haidary and Woodbridge Holdings Ltd., Re, 2022 CarswellAlta 2140.
