‘Objectively suspect’: Tribunal questions employer's stated justification for terminating worker's employment
A worker dismissed one working day after calling 911 about carbon monoxide at her workplace has won a retaliation ruling from British Columbia's Workers' Compensation Appeal Tribunal.
Vice-chair Anand Banerjee found the employer took prohibited action when it terminated her employment just one working day after triggering a WorkSafeBC inspection and stop-work order.
The employer's defence was chronic tardiness but the tribunal was not persuaded.
Call about carbon monoxide
It was not the first time the employer had drawn regulatory scrutiny. WorkSafeBC had issued multiple violation orders following an inspection in March 2023, after the worker first raised carbon monoxide concerns with the board, and it took a number of months before the employer achieved compliance.
On May 12, 2023, the worker experienced a headache and chest pain at work and believed carbon monoxide from a forklift operated indoors was the cause, though the actual cause was not determined. She contacted both WorkSafeBC and called 911.
Firefighters measured carbon monoxide levels of 55 and 105 parts per million in certain areas of the workplace. As a result of this information, the OHO re‑issued one of the violation orders and issued a “stop work” order to the employer.
That same day, the worker said the employer's owner interrupted her conversation with the occupational hygiene officer and shouted, "You guys want to ruin my business!" Management asked staff who had called 911, and the worker said the employer had told her not to speak to WorkSafeBC employees.
The following Monday, May 15, 2023, the worker was terminated.
Employer claims chronic tardiness
The employer pointed to timekeeping records showing the worker regularly started work about five minutes after the scheduled 9:00 a.m. start time. The worker countered that she stayed five to 10 minutes beyond her 5:30 p.m. end time to compensate and had notified her manager whenever she expected to be more than 15 minutes late.
No written or verbal warnings had been issued before the termination. No prior disciplinary actions were on record. A co-worker's written statement, submitted to the board during the original proceedings, revealed that the employer's general manager had told staff the worker was fired because "she made huge loss to the company", which the tribunal linked to the costs of complying with the WorkSafeBC orders.
The employer submitted attendance records but provided no statement from the decision-maker, no internal documents showing operational harm, and no customer feedback. It declined to respond to the worker's final submission.
No retaliation for safety complaints
The tribunal found that the closeness in time between the safety report and the termination shifted the burden entirely to the employer to prove its actions were free of retaliatory motive. The worker's uncontradicted evidence that the employer tore down the OHO's posted inspection report further supported the inference of retaliatory intent.
Banerjee adopted the principle from prior Appeal Division authority that "safety considerations need not be the only or dominant reason for the employer's action, but rather, it is sufficient if it is one of the reasons for the employer's actions under review."
The tribunal also noted that even if an employer has legitimate grounds for termination, if retaliation for a safety concern is also a factor, "the entire termination is tainted, despite the fact that there may have been a number of legitimate reasons to justify ending the worker's employment at common law."
Banerjee found that "the employer's stated justification for terminating the worker's employment seems objectively suspect, in the face of undisputed factual allegations," and dismissed the employer's appeal.
See A2500253 (Re)
