Worker didn't suffer adverse effects to terms or conditions of employment: board
The Manitoba Labour Board has dismissed a worker’s claim that his employer retaliated against him for raising health and safety concerns over a co-worker’s discriminatory behaviour.
The employer was a grocery store in Manitoba. It hired the worker as a part-time grocery clerk for the night shift in the fall of 2016. The night shift ran from midnight to 8 a.m. and the worker was regularly scheduled for 40 hours per week, even though he was officially part-time. The employee handbook stated that part-time employees were normally scheduled to work less than 40 hours each week.
All employees were required to punch in at the beginning and end of their shift, as well as at the start and end of their lunch break.
Inappropriate comments
Shortly after the worker started working at the store, a co-worker on the night shift made disrespectful and racist comments about a colleague called U.C. U.C. raised concerns with the franchisee owner of the store, so the owner told the co-worker that the comments were inappropriate. He wasn’t entirely satisfied, but he made no further complaints.
The number of night workers at the store was gradually reduced to two by March 2020. On April 4, the worker and U.C. were asked by the grocery manager to clock in and out for breaks, which offended them.
A few days later, the grocery manager posted a message for the two night-shift workers on a door advising that they should keep track of the number of items they were stocking per hour. This also offended them, as no other employee had to do this. The worker responded by sending an email on April 12 to the owner about the racial harassment and discrimination of U.C. as well as concerns over the requirements to clock in and out for breaks, the message on the door, and the tracking of items stocked. He also forwarded the email to the corporate office.
Meetings with management
The owner met with the worker on April 15. He was upset that the worker emailed corporate before trying to resolve the issues internally. Afterwards, the owner talked to the employee who had allegedly harassed U.C. and told him to stop making unacceptable and unappreciated comments.
The owner emailed the worker on April 27 advising that the worker and U.C. would no longer be required to punch in and out for breaks, no notes would be posted on doors, the stock loading requirement of 45 pieces per hour would continue, and any form of bullying, intimidation, or discrimination would not be tolerated and could result in discipline up to termination. In addition, the worker would be scheduled from midnight to 8:30 a.m. each shift.
The worker was shocked at the change in his working hours, which added a half-hour to his shift. He had been working through his half-hour lunch break so he could leave at 8 a.m. The owner wanted him to overlap with his supervisors to address the concerns regarding a lack of communication, but the worker believed the change was a reprisal for him raising safety and health issues.
In May, the worker wrote to corporate HR saying that he was concerned about retaliation. He asked to change his hours so he could start work at 11:30 p.m. in order to finish by 8 a.m. The company granted the request.
Requirement to document work
Later, the night shift workers were asked to complete “trip sheets,” upon which piece counts for stocking product could be recorded. The worker believed this was further retaliation and both he and U.C. refused to comply, as they were already meeting the 45-pieces-per-hour requirement and no other employee was required to complete the sheets.
In July, the worker’s hours were reduced to 32 per week. The company advised that this was because of reduced hours in the department and the business due to the pandemic – the priority was to maintain full-time hours for full-time staff, so part-time employees had their hours reduced.
On Sept. 25, the worker wrote to the owner demanding an end to retaliatory treatment such as the trip sheets requirement, the extra 30 minutes on his shift, the “arbitrary” reduction in hours, and the posting of “discriminatory and harassing notes.” He also demanded a “complete and impartial investigation” into the co-worker who had harassed U.C.
The owner responded by saying that the co-worker’s behaviour had stopped and he provided few details. Corporate conducted an independent investigation including interviews of the worker and U.C. It determined that there was no systemic racism or discrimination, but provided “operational opportunities,” which the owner agreed to implement.
In early 2021, U.C. was granted a shift change to the evening shift, leaving only the worker on the night shift.
Complaint of discriminatory action
On March 22, 2021, the worker filed a complaint of discriminatory action with Manitoba Workplace Safety and Health, alleging reprisals for raising issues of racial harassment and discrimination of a co-worker.
In May, the worker’s hours were reduced further to 24 per week. Stock was being delivered earlier in the day and the store was undergoing renovations that were affecting the business, leaving less to do for night employees.
A Safety and Health officer dismissed the worker’s complaint and the worker appealed to the Director of Workplace Safety and Health. The director determined that the worker failed to establish a prima facie case of reprisal because there were no acts or omissions by the employer that adversely affected the worker’s employment.
The worker appealed to the labour board.
The board noted that the Manitoba Workplace Safety and Health Act (WSHA) defines “discriminatory act” as any act or omission by the employer which “adversely affects any term or condition of employment” and aims to prevent reprisals.
No adverse consequences
The board found that the worker raised issues of workplace health and safety in his April 2020 email to the owner. However, while the worker claimed that the requirement to complete trip sheets and being no longer able to bank his lunch break were adverse employment consequences, the board disagreed.
The board found that the trip sheet – a performance tool unrelated to the terms and conditions of employment - and the lunch break were “well within the right of management to impose” and the worker was provided with three weeks’ notice of the latter. In addition, the worker was able to negotiate an earlier start so he could still leave at 8 a.m.
As for the reduction in hours, the board found that the worker could reasonably expect to work 40 hours per week based on past practice, even though he was part-time. As a result, the reduction was an adverse effect on a term or condition of employment, said the board.
However, the board found that the worker did not demonstrate a link between the reduction in hours and his health and safety complaint. The reduction came three months after the complaint during a time when the company was dealing with “many complex and novel issues occasioned by the COVID-19 pandemic. Even if there was a connection, the company was able to show that there were reasons other than the worker’s raising of health and safety issues for the reduction in the worker’s hours, said the board in dismissing the worker’s complaint. See O.D. v. 7041595 Manitoba Ltd., 2022 CanLII 134789.
