'He's told us he's not working here anymore, what do you want us to do?'
The Manitoba Labour Board has dismissed an appeal by a worker who claimed his employer engaged in a reprisal after he raised workplace safety concerns and ended up leaving his employment.
L. Chabot Enterprises (LCE) is a heavy construction company based in Oakbank, Man., specializing in sand, gravel, and stone crushing for projects such as road construction and earthworks. The worker joined LCE in an entry-level position on June 13, 2023, with duties involving operating a packer machine.
Three days after he started, the worker was approached by a co-worker while he was warming up his machine. They had a verbal altercation and the co-worker reached over the worker and shut off his machine. The worker got out of his machine and started walking towards the supervisor to report the incident but, according to the worker, the co-worker chased him and shoved him. The co-worker also picked up a rock and suggested that he would throw it.
The supervisor sent the co-worker home and advised LCE’s vice-president about the incident. The vice-president confirmed that the co-worker had been sent home and asked the supervisor to tell the worker to contact her after lunch.
However, the worker didn’t reach out to the vice-president and he left work at 2 p.m., which had been pre-approved. The vice-president didn’t hear anything else about it, so she assumed that “cooler heads had prevailed” and the matter was resolved. She was aware of another incident reported by the supervisor where the worker was allegedly disrespectful with other employees and a client, although she hadn’t raised it with the worker.
The co-worker was dismissed for his role in the incident.
Alternative work
On June 18, two days after the incident and the next workday, the worker called LCE to inquire about his shifts. The company told him that his packer machine was broken and wouldn’t be functional for a few days. There weren’t any other machines available because he was a junior employee and he wasn’t qualified to operate any other machinery, so he was told to contact the office to see if there was alternative work available.
The next day, the worker texted his supervisor instead of the office about alternative work and said he would come to work and use other machines. However, the foreman replied that he didn’t need an extra packer “doing nothing” and it would be up to the office if he would be terminated as well – he said that three people witnessed the incident and saw the worker picking up the rock.
The supervisor also commented that the worker seemed to pick and choose his hours, since he had left work early on June 16. The worker became angry and accused his supervisor of sleeping on the job and said he wasn’t qualified to be a foreman. He also said that he was going to report the supervisor to Manitoba Workplace Safety and Health (WSH), saying that the company allowed people to “smoke weed on the job, drink on the job, sleep on the job, and not have proper licensing to operate the machines.” He also accused LCE of racketeering.
The same day, the worker contacted WSH, claiming that LCE had unjustly terminated his employment as a reprisal for raising safety concerns on the day of the incident.
On June 28, LCE learned of the WSH complaint and invited the worker to a meeting the next day. The worker agreed to a phone call and said he wanted to “get this over and done with. However, the next day the worker said that there was no point in further discussing the matter as he had already reported the issues with WSH and police.
“They got into a bit of a verbal spat rather than actually the worker asking for more work, and then the worker made it very clear that he considered his position to be terminated, and the relationship was gone,” says Mark Alward, an employment lawyer at Taylor McCaffrey in Winnipeg. “This is a case where the employer seemed to be taken by surprise by the allegation that they terminated the worker.”
Record of employment
LCE took this to mean that the worker didn’t want to address his workplace concerns and issued a record of employment (ROE), taking the position that the worker remained employed when he filed his WSH complaint and it was the worker who left when he failed to contact the company as directed or request any further action. It also said that it addressed the safety issue in a timely manner by sending the co-worker home after the altercation.
There may have been a few small things that LCE could have done better when the worker’s machine broke down, but the company handled things fairly well, according to Alward.
“Once the employee communicated that, in his view, he'd been terminated and he wasn't going to be coming back to work, I think they did the right thing,” he says. “They issued a record of employment, basically saying, ‘He's told us he's not working here anymore, what do you want us to do?’”
“Maybe it wasn't perfect, but [LCE] did things that were reasonable - they didn't act in a high-handed way and they didn't try to manipulate or twist things,” Alward adds. “It's very simple, what the worker told people and [LCE] believed what he told them - they didn't twist his words and they didn't try to trick him into anything.”
A WSH officer dismissed the worker’s complaint on July 10 and the worker appealed to the board.
Test for reprisal
The board referred to the three-part test to assess whether a prima facie case of reprisal had been established: the worker must demonstrate that he invoked his rights under The Workplace Safety and Health Act (WSHA); there is evidence of negative employment consequences; and a timely and reasonable connection must exist between the worker’s actions and the alleged reprisal.
If a reprisal is established, the onus shifts to the employer to prove that the decision to take the reprisal wasn’t influenced by the worker’s actions, the board added.
The board found that the worker raised safety concerns on the day of the incident, satisfying the first part of the test. However, he failed to establish that he suffered negative employment consequences as a direct result of his safety-related actions, as he didn’t take steps to secure alternative work after his machine became inoperable despite LCE inviting him to do so, said the board, noting the worker’s confrontational communications with management.
Although LCE ultimately issued an ROE, the board determined that the worker’s actions - including his refusal to attend a meeting and his statements about pursuing legal action - were understood as a signal he no longer wished to continue employment.
Termination not a reprisal
The board determined that the worker failed to establish a sufficient factual foundation to meet the threshold for a prima facie case of reprisal. Even if the worker was successful in that regard, LCE’s decision not to provide the worker with more hours of work appeared to stem from bona fide business reasons – such as his packer machine breaking down and his lack of qualifications to operate other machines - rather than retaliation for his safety complaint, said the board.
“That's really where this case falls apart - when you look at everything that happened, it doesn't lend itself well to the worker's story that this was an intended reprisal action,” says Alward. “[LCE] had reasonable and rational explanations for everything that happened subsequent to the workplace safety and health complaint being filed.”
The board concluded that the worker’s dismissal claim didn’t meet the criteria for a reprisal under the WSHA and dismissed his appeal.
When an employer receives a complaint under workplace safety and health legislation, it needs to take a step back, assess what's going to happen next, document everything, and make sure someone with experience in safety and health issues is involved – whether external legal counsel or an internal safety expert, says Alward.
“It's important in any sort of workplace safety and health issue that you're getting the appropriate advice from people who have a fundamental understanding of it, whether there's an accident or a sexual harassment or workplace violence claim,” he says. “It’s important to have somebody who has dealt with those situations and knows what to do and what the best practices are, because this is an area of where there's a ton of pitfalls for employers.”
See K.G. v. L. Chabot Enterprises Ltd., 2024 CanLII 105200.
