'Be more careful on the hiring end and be a little quicker on the dismissal end,' says lawyer discussing Alberta decision
A worker’s appeal of a decision that the termination of his employment was not related to his compliance with occupational health and safety (OHS) legislation was dismissed by the Alberta Labour Relations Board’s Appeal Body.
“The onus is on the employer where a termination or disciplinary action happens soon after OHS gets involved, and it was bit of an unfortunate coincidence in this case because [the employer] was planning to dismiss this employee for unrelated reasons,” says Joseph Oppenheim, a labour and employment lawyer at Carbert Waite in Calgary.
“But [the employer] had evidence that appeared to demonstrate that they had conducted themselves professionally and were communicating clearly around the reasons why termination was being sought - so it was able to exonerate itself.”
The worker was the Director of People and Culture at Carrington Holdings, a residential construction company in Edmonton, starting in September 2022.
In December 2023, the worker emailed Carrington’s chief operating officer (COO) with concerns about his treatment at work, including his belief that the company’s leadership didn’t respect him. He followed up with another email on Jan. 5, 2024, accusing the company’s vice-president of being condescending to him in a meeting and trying to discredit him to leadership. The worker added that he would be considering other jobs, although he wasn’t quitting.
The director requested that the vice-president keep his emails confidential and not to do anything officially about his concerns, saying that “the best resolution is for me to keep doing what I’m doing and leave when something better comes along.”
Reports of misconduct
The director of HR met with Carrington’s CEO on Feb. 7 to discuss accommodations he needed, and told the CEO that the vice-president was harassing and mistreating him. At the same time, another employee reported to Carrington’s president that the worker had ranted at a meeting about company morale and how miserable staff were, and the company didn’t want to invest in improving morale. According to the employee, the director had also disclosed the details of an employee survey about morale, which he hadn’t yet shared with the company’s executive team.
Later, other employees who had been at the meeting confirmed that the director made negative comments about company morale and made them feel uncomfortable.
The executive team discussed the worker’s behaviour and concerns that he could become more toxic and disruptive to the business. The president expressed a desire to start discussing termination of the director’s employment. The CEO agreed that “termination might be the best option.” After further discussion, they chose Feb. 20 as the termination date.
However, on Feb. 9, an HR manager met with the director and the director said that he would “gladly take severance” as part of comments that the HR manager felt were unprofessional and disrespectful. The HR manager brought this to the executive team’s attention and they decided to move up the individual’s termination to the following day, Feb. 13.
That same day, an occupational health and safety (OHS) officer attended Carrington’s offices and met with the director of people and culture to discuss the company’s policies, programs, and investigations around harassment. The officer requested documentation of incidents of harassment, which he followed up with an order to produce the requested records in an email on the morning of Feb. 13.
Termination of HR director
The worker forwarded the order to the executive team. Later that day, Carrington terminated the worker’s employment, providing a termination letter stating that the company had reviewed his fit within the organization and “decided to go in a different direction.”
The next day, the worker filed a disciplinary action complaint under the Alberta Occupational Health and Safety Act (OHSA), alleging that the company dismissed him due to his compliance with workplace safety obligations, including reporting harassment and trying to co-operate with an OHS inspection.
Carrington denied the allegations, maintaining that the director’s termination was based on long-standing concerns about his organizational fit and the incidents of alleged misconduct.
Another OHS officer investigated the director’s complaint and referred to the three-part test for a discriminatory action complaint – was the worker acting in compliance with the OHSA or Employment Standards Code, was the worker subject to disciplinary action as defined by the OHSA, and did the employer establish that the disciplinary action was unrelated to the worker acting in compliance with the legislation?
The officer determined that the first two parts of the test were met – the director’s reporting of harassment was in compliance with the OHSA, as was his participating in the OHS inspection. In addition, the termination of the worker’s employment was a disciplinary action, said the officer.
Documentation of concerns about worker
However, the officer found that Carrington had established that the termination was unrelated to the director’s compliance with the OHSA. The company was able to show that there had been internal discussions through email among the company's executives from late 2023 through early 2024 regarding the worker’s suitability for his role, and the allegations of inappropriate comments by the worker in February 2024 raised further questions about the director’s fit with the company, the officer found.
The officer concluded that the decision to terminate was finalized before the director’s notification to company executives about the workplace inspection and order to produce records. In addition, the order to produce was issued to the company, not the worker personally, so the director’s participation in the OHS inspection ended when his meeting with the officer concluded and there was no interference in the worker’s obligations under the OHSA, said the officer.
The worker appealed the officer’s report, claiming that the officer misapprehended certain facts. He argued that Carrington started reconsidering the worker’s fit around the time he reported harassment and must have taken that into account, and the company was aware of the OHS investigation before his email informing the executive team of it. In addition, the worker denied the conduct he was accused of in the meetings.
The board’s Appeal Body found no evidence to suggest the director’s compliance with the OHSA influenced Carrington’s decision to terminate his employment. Emails exchanged between the company’s executive team showed multiple discussions in the four-to-six months before the termination, and things escalated after management learned of the worker’s poor judgment and negative comments about the company in February 2024, said the board, noting that the worker had asked the COO to keep his harassment complaint confidential and there was no evidence that the COO failed to do that.
The diirector argued that he informed the CEO of the harassment on Feb. 7, but by this time “the decision to terminate was already in motion,” the board said, adding that the same applied to the Feb. 12 OHS inspection.
In addition, the board found that the OHS officer’s request for records was directed at the company rather than the worker, and it didn’t impose obligations on the worker that could have been hindered by his dismissal.
Employer onus to prove reason for termination
“It was clearly established that [Carrington] was looking to dismiss the worker before the OHS officer ever contacted anybody in the organization, so that timeline was critical,” says Oppenheim. “It goes to show that, although the onus is placed on the employer [to disprove the complaint], it isn't actually that difficult to meet that onus, as long as you’ve got the paper trail.”
The board noted that a disciplinary action complaint wasn’t a wrongful dismissal complaint, and the issue wasn’t whether there was just cause for dismissal but rather whether the reason for discipline was unrelated to the worker’s act of compliance.
The board concluded that the director’s appeal had no reasonable prospect of success and upheld the OHS officer’s finding that the termination was based on organizational and behavioural concerns and was unrelated to the worker’s compliance with the OHSA.
Although Carrington’s defence was successful, the case suggests that employers should have slow and measured hiring practices to ensure they’re getting the right candidates, while acting more quickly if things aren’t working out, according to Oppenheim.
“Be more careful on the hiring end and be a little quicker on the dismissal end - if the wind is blowing in favour of dismissal, then the sooner you act, the better,” he says. “Particularly with someone who is potentially causing morale problems or disparaging management to other staff, you are much better off acting decisively sooner rather than later.”
“And when you’re contemplating or discussing with your executive team a possible termination, you want to be really clear as to the reasons you're doing it,” adds Oppenheim. “In this case, they were very explicit that they wanted to accelerate the dismissal of this particular employee because he was contributing to a toxic work environment.”
