Worker chose to go on unpaid leave and gave ultimatum after rift with manager
An Alberta employer did not discipline a worker for a discrimination complaint when it accepted that he abandoned his employment after he refused to report to work, the Alberta Relations Board has ruled.
Motion LP is a company that sells home accessibility products such as ramps and stairlifts, and mobility products such as wheelchairs and scooters across Canada. The company employed the worker as a mobility and accessibility sales consultant in Alberta starting around 2011.
In the fall of 2021, Motion implemented a mandatory COVID-19 vaccination policy for its employees. The worker requested accommodation because of a medical inability to take the vaccine and the company granted it.
On Feb. 10, 2022, the worker sent an email to his store manager’s personal email address that referred to the “malicious way” that the manager treated him and other employees. The email said that the worker was afraid to come into work and the manager needed to “regroup” and “figure out why you apparently hate me so much.”
Motion treated the email as “inappropriate and unprofessional” and gave the worker a performance coaching report and final written warning on Feb. 15. The warning stated that the email was “aggressive and vexatious” and a personal attack on the store manager, indicating that the worker’s performance would be monitored for 30 days and further similar incidents would lead to “immediate for cause termination of your employment.”
A municipality’s refusal to rehire a former employee was because of her record, not a human rights complaint, the BC Human Rights Tribunal ruled.
Harassment complaint
On March 7, the worker emailed the company alleging mistreatment by the store manager. He said that he was concerned for his mental and physical wellbeing and felt unsafe to be in the same building as the manager. He indicated that he was willing to work from home but would not return to the store with the manager still there.
The worker suggested keeping either him or the store manager, but if the company wanted to release him, it could do so by paying his commission from February sales, two-thirds of all future sales he generated, and eight weeks’ severance and benefits. He said he would take vacation days until March 9, when he would like an answer, and drop off company tools, ramp, card, and store keys.
Motion’s director of people and culture sent the worker a notice of investigation of his complaint against the manager and a complaint form. Vacation days from March 7 to 9 were approved and his email access was cut off.
The next day, the worker said he could not make a scheduled meeting and asked for a message to be forwarded to several other employees stating that he felt “targeted for termination.” He again requested eight weeks’ severance pay.
Motion contacted the worker multiple times to confirm whether he intended to return to work or resign, stating that he was still in active employment with the company and “at no time did we indicate a termination of employment.”
An employer’s internal emails showed that a professional standards investigation was a retaliation for a work refusal, an adjudicator found.
Worker wanted severance pay
The worker said that he had been directed to Alberta Occupational Health and Safety and gave Motion until noon on March 10 to pay him for dismissal without cause. The company again confirmed that his employment was active and declined his vacation request for March 10-14.
On March 10, the worker said that he would never return as long as the store manager was there. Motion offered to place him on approved unpaid leave pending completion of the investigation.
On March 17, the worker submitted a discriminatory action complaint (DAC) under the provincial Occupational Health and Safety Act and advised Motion’s third-party investigator that he would not participate in the investigation because he had filed an OHS claim.
On April 20, Motion advised the worker that the investigation determined that his allegations were unsubstantiated, and he was to report to work on April 25. The worker didn’t show up, so he was given until May 2 or else he would be considered to have abandoned his employment.
With no sign of the worker on May 3, Motion terminated his employment based on job abandonment.
A warning and suspension were not related to a worker’s discrimination complaint, but moving her off her shift was a retaliation, the Alberta Human Rights Tribunal found.
Worker chose unpaid leave
An OHS officer investigated the worker’s DAC and found that the worker was engaged in a protected activity when he filed a harassment complaint on March 7, but Motion did not take disciplinary action against the worker. The worker had chosen to take unpaid leave and did not return to work.
The officer also found that Motion had a non-OHS reason for releasing the worker from his employment – the worker had said he was not returning to work during the investigation and his conditions for returning were not acceptable to the company. When the worker didn’t return to work following the investigation, Motion released him, said the officer.
The worker appealed to the Alberta Labour Relations Board, arguing that the matter should be changed to “harassment from a manager causing an unsafe workplace or worksite.” He requested compensation in accordance with Alberta employment standards.
About one month after the worker filed his appeal, he added an allegation that he had been discriminated against on the basis of physical disability over his refusal to be vaccinated.
A Nova Scotia court upheld a worker’s firing following work refusals, citing legitimate business reasons.
Board agreed with OHS officer
The board agreed that the worker made a harassment complaint, which was a protected activity under the Occupational Health and Safety Act (OHSA). It also agreed with the OHS officer that it was reasonable to conclude that Motion did not take any disciplinary action against the worker, as he chose to be off work. There was also no obligation for the company to approve additional vacation and by remaining off work, the worker effectively accepted the offer of unpaid leave, said the board.
The board also found that Motion was not obliged to accept the worker’s conditions of allowing him to work from home or terminate the store manager’s employment.
As for the blocking of the worker’s email access, this was for operational reasons and not disciplinary, said the board, noting that the worker clearly indicated that he was not intending to carry out work tasks until his complaint was resolved.
The board determined that there was no disciplinary action by Motion and therefore no retaliation for his harassment complaint. Although the worker brought up a discrimination issue late in the process, it should be addressed in a human rights complaint, not an OHS one, said the board. Likewise, if the worker wanted to pursue severance pay, it would have to be in an employment standards complaint, the board added.
The board dismissed the worker’s appeal. See Malpass and Motion LP, Re, 2023 CarswellAlta 1132.
