Employer demonstrates 'actions weren't arbitrary'
An employer’s worksite ban of a worker due to an alleged safety violation was not a reprisal for the worker’s efforts as a health and safety representative, the Ontario Labour Relations Board has ruled.
“Where there's a reverse onus [on the employer to prove no reprisal], it's really key for the employer to be able to document everything, because a decision-maker has to be able to determine if the employer did what it did for health and safety reasons, not as a punishment,” says Aleksandra Pressey, a lawyer and workplace investigator at Williams HR Law in the Toronto area.
The worker was an electrician for Mellon, an electrical subcontractor. In November 2020, he began working at a construction site in Sarnia, Ont., owned by Nova Chemicals.
Nova distributed a handbook to all contractors that included a procedure for dealing with “yellow-tape” and “red-tape” barriers around work areas. Red-tape areas were strictly off-limits without permission from the person responsible for the area, as the red tape indicated an immediate health and safety threat.
In October 2021, the worker became the co-chair of the project’s joint health and safety committee (JHSC). He was also chair of a committee of contractor employees that dealt with on-the-ground health and safety issues.
Worker active in health and safety
The worker was active in the committees and didn’t hesitate to raise safety concerns with Nova.
On Nov. 8, 2021, a Nova representative on the JHSC saw the worker not wearing earplugs, as was required. He told the worker that he was going to write him up and told the JHSC that there would be a price to pay for the violation.
The worker felt that this was a reprisal for him raising health and safety concerns, so he asked for the Nova representative’s removal from the JHSC. The Nova representative was urged to privately apologize to the worker and he also apologized to the JHSC in the worker’s presence.
Over the next few months, the worker raised concerns over the volume of traffic entering and exiting the project during shift change, mishandling of a work refusal, a lack of documented communication on health and safety matters, the possible presence of mould in a dining and meeting tent, and inadequate washroom facilities.
Safety violations identified
In May 2022, Nova learned that unidentified Mellon electricians were walking through a red-tape area. Mellon was told to remind its crews to honour red-tape barricades and the failure to do so might result in the loss of access to the project site.
On June 2, someone filed a “near hit anonymous report” stating that the worker had disregarded a red-tape barrier around a crane hoist by crossing the barrier and addressing the crew without permission.
Nova investigated and obtained three witness statements from the crew, who all gave consistent accounts that the worker had entered their red-tape zone without permission. On June 10, Nova suspended the worker’s site access privileges pending the investigation outcome.
Mellon provided several witness statements from its own employees and those of the contractor responsible for the crane lift, along with its own finding that there was no conclusive evidence of an entry into the red-tape zone. Both the worker and a union steward who was with him claimed that there was no red tape around the area when they arrived. As the area became red-taped, they backed away and spoke to three crew members about the work being done.
Independent investigator hired
Nova hired a third-party investigator to determine which account was more probable. The investigator reviewed the witness statements, Mellon’s findings, and the anonymous report. She interviewed two of the witnesses who said the worker had entered the red-tape zone, but none of the ones who had provided statements to Mellon. She also interviewed two other foremen who both said the area was red-taped when the worker arrived.
On June 20, the investigator provided a draft report of her findings to Nova concluding that the worker had entered the red-tape area without permission and recommending a one-year site ban.
Nova accepted the findings, but it decided to reduce the site ban to six months. On June 21, Nova informed Mellon of the worker’s six-month ban for the “serious health and safety procedure violation.”
The worker filed an application alleging that the site ban was a reprisal for him exercising rights under or seeking enforcement of the OHSA, as his health and safety complaints were “irksome and frustrating” to Nova. He also claimed that the investigator wasn’t truly independent and conducted a flawed investigation, as she only interviewed witnesses who accused the worker of the misconduct.
Workplace safety taken seriously
The board found that the evidence indicated Nova took the issue of red-tape compliance seriously. The handbook outlined the importance of the procedure and workers were regularly reminded of it at safety meetings and workshops and in the weekly newsletter, the board said.
As for Nova allegedly wanting to punish the worker for his health and safety complaints, the board found this didn’t hold up. The Nova representative who called out the worker for his earplug violation was told to apologize, and there was no evidence of Nova being irked by the worker, the board said. In addition, Nova reduced the investigator’s recommended site ban from one year to six months, which wasn’t consistent with the idea that Nova wanted to be rid of the worker, said the board.
Nova helped itself by being transparent about its health and safety requirements, according to Pressey.
“[Nova] was able to present a very clear chronology for why this particular health and safety issue was important - it was communicated in writing before the infraction and it was able to demonstrate that it was taken seriously,” she says. “[Nova] was able to demonstrate that its actions weren't arbitrary - the worker spoke to a general air of reprisal but he wasn’t able to tie it to specific issues.”
Employer didn’t interfere with investigation
As for the investigator, there was no indication that she wasn’t independent. Nova didn’t try to interfere with the investigation and the company was entitled to rely on the investigator’s experience and expertise, the board said.
The board noted that the only first-hand account of the incident was from the worker and his colleague. The board found that all the witnesses were credible, so it was inclined to believe that the worker didn’t violate the policy. The investigator’s conclusion was the result of considering other, untested, statements that implicated the worker and she had to make a decision on what was more likely - which was a reasonable approach, the board said.
“The investigation wasn't without issues, but Nova found that it had two conflicting versions and ultimately felt that the only way to determine what happened was to get an impartial third party,” says Pressey. “And that's something that's really key whenever there's serious misconduct - employers would be well-advised to ensure that an investigation is conducted that's appropriate in the circumstances.”
However, the issue was not whether the worker actually violated the red-tape policy, but whether the site ban was motivated by his health and safety activities. The board found that Nova made the decision based on “the report of a trusted consultant with some prior experience in investigating workplace incidents finding that [the worker] had breached Nova’s barricading rules.” While Nova was aware of the worker’s role as a health and safety leader, it was reasonable to consider this in assessing the seriousness of a health and safety violation, said the board.
“Under the OHSA, [exercising a safety right] only has to be part of the reason, but in this case it seemed that he was never penalized with respect to his health and safety complaints,” says Pressey. “All of [Nova’s] actions were logically consistent, which made it credible and feasible when it said that the purpose of this penalty was just related to enforcing health and safety measures.”
No causal connection to worker’s H&S activities
The board determined that Nova’s site ban had no causal connection to the worker’s activities as a health and safety leader. The worker’s application was dismissed.
The decision emphasizes importance of educating managers on what reprisal is, so they don’t inadvertently commit it against an employee, says Pressey.
“Ideally, as an employer, you're transparent and your people managers make decisions in good faith so no reprisal complaint is made,” she says. “If it does come to a complaint, document and marshal all of your evidence so you can demonstrate the lack of a causal link between the alleged reprisal and the right being asserted - this is where a lot of employers fall down, having verbal discussions and then not taking notes or following up with an email, or something like that.”
