'There is a good lesson for employers looking at this'
The Alberta Labour Relations Board’s dismissal of a worker’s claim of discriminatory treatment related to his safety concerns demonstrates the difference between how human rights and occupational health and safety (OHS) legislation are applied in the province, says Dylan Snowdon, an employment lawyer and partner with Carbert Waite in Calgary.
“In the human rights system, if an employee is subjected to adverse consequences, the fact that there was a discriminatory purpose as part of the reasoning makes it discriminatory under the Human Rights Act,” says Snowdon. “In OHS it’s exactly the opposite – if there's a partial reason for the adverse treatment that isn't connected to the protected ground [under OHS legislation], then the protection doesn't apply.”
Alberta Health Services Emergency Medical Services (EMS) provides emergency services in the province of Alberta. The worker was employed as an advanced care paramedic for EMS in Edmonton. His duties included operating a paramedic response unit (PRU), which is a special type of ambulance operated by a single primary care paramedic.
Read more: The Alberta government recently made changes to the province’s health and safety rules.
In 2018, EMS brought in new navigation technology for paramedics to use in their vehicles. At the time, the worker was co-chair of the EMS joint work health and safety committee. From March 2018 to February 2019, the worker reported safety concerns over the routing technology nine times and to the committee three times. He was concerned that there was a lag between the route displayed and where the PRU was located, as well as the volume of the voice directions being too low.
On Feb. 21, 2019, the worker was travelling to a call when he made a navigation error. He wasn’t using the ambulance routing technology, which was required. EMS removed the worker from the PRU and assigned him to a regular, two-person ambulance, which restricted his ability to bid on assignments.
EMS also launched an investigation into the incident. In an interview, the worker said that he didn’t use the routing technology because it wasn’t safe.
EMS issued a letter of expectation indicating that it would be developing a performance measures plan. Until he could demonstrate that he was capable of using the technology and performing in a safe manner, he would be assigned to regular ambulances.
The worker filed a complaint under the Alberta Occupational Health and Safety Act, claiming that EMS discriminated against him for activities protected under the act, including refusing to engage in work that he reasonably believed was unsafe and reporting on the safety of the routing technology in his role with the joint safety committee.
Non-discriminatory reason for discipline
An OHS officer investigated and determined that the worker’s reporting of safety issues was a protected activity under the act and his removal from the PRU was a disciplinary action. However, the officer found that EMS was able to establish that the transfer was for reasons other than the worker’s engagement in a protected activity – EMS conducted an investigation, it had policies and procedures requiring the use of the technology, it had communicated the requirement to the worker, and it had responded to situations of other employees not using the routing technology. The reason for discipline was for not using the appropriate technology as the worker had been directed, the officer found.
“The employer was able to show a refusal to follow policies and because the complaint didn't contain a refusal for safety purposes, they didn't consider that an issue,” says Snowdon. “They only looked at it from one side, which was the employer side of, ‘Is there a reasonable explanation for why you moved this employee?’ ‘Yes, this employee was refusing to follow our policies in the PRU position.’”
The worker appealed, arguing that the OHS officer failed to account for the entire circumstances and that he had explained to EMS that he didn’t use the routing technology because it was unsafe – another protected activity, said the worker.
Snowdon says a problem with the worker’s approach was that he didn’t prove that the routing technology was actually unsafe or make an official work refusal.
“I think the employee was comparing the map routing software to a hypothetical better piece of software,” he says. “I don't know that anybody really accepted it as a safety concern and I don't think OHS really looked at it that way, because there wasn't a true complaint.”
The Labour Relations Board noted that the worker’s complaint was about the transfer to a regular ambulance and not any refusal to perform unsafe work. Given the evidence provided by EMS, it was reasonable for the OHS officer to find that there were reasons for the disciplinary transfer that weren’t related to a protected activity under the act, the board found. In addition, there was no obligation on the officer’s part to address the worker’s claim that he had been punished for refusing unsafe work, because that wasn’t part of the complaint.
“Some of what the employer did right is just addressing the complaint exactly as it was framed and dealing with it in a technical manner, which is how the OHS regime operates,” says Snowdon. “There is a good lesson for employers looking at this, which is that if a complaint is restricted and focused, the response should be equally restricted and focus to avoid potentially raising other issues.”
Read more: An Ontario nurse’s termination couldn’t have been a reprisal for her safety complaint because the employer wasn’t aware of her concerns before the decision was made, the Ontario Labour Relations Board has ruled.
Snowdon sees this decision as an example of how the OHS regime can be complicated and the worker – who represented himself – probably wasn’t prepared to navigate it.
“The gateway to get into human rights is so easy – an employee goes on their website and fills out a form and they’re basically being helped along the road,” he says. “With OHS, sure, you can file a complaint almost as easily, but the map to the end result is much more complicated. The route is more circuitous.”
For its part, EMS handled the matter well with strong documentation and a focus on the complaint, says Snowdon.
“They had a lot of documentation showing that they had looked into the safety concerns that were raised and they had also done quite a thorough investigation on the failure to follow policies. They'd looked at this employee, they looked at other employees in a similar position where they were following policies and procedures, and they determined that this was an outlier employee [who] was refusing to follow the policies and procedures.”
See Kaderabek v. Alberta Health Services, Emergency Medical Services, 2021 CarswellAlta 1072.
