Unsupported Retaliation Allegation Goes Nowhere

Written by Daniel Standing LL.B., Editor, First Reference Inc.

Employees have important protections under workplace legislation that encourages them to bring forward complaints of health and safety issues so the employer can ensure the safety of all. If a complainant employee is the victim of perceived retaliation by the employer, they can seek a remedy. The litigation in 2022 BCSC 1558 (CanLII) highlights some of the legal issues that can arise.

Background

The complainant employee worked as a banquet server at an airport. His legal problems can be traced back to the day he saw a co-worker eating food that had been charged to a customer. Their relationship then soured to the point where his co-worker assaulted him. Instead of reporting the assault, the employee sought a written apology from his co-worker. When it wasn’t forthcoming, the employee sent multiple Emails to his colleague demanding written confirmation it wouldn’t happen again. Finally, the co-worker apologized in an Email, but the employee found it unsatisfactory and reported the matter to management.

After considering the situation, management suspended the co-worker for a week. It also determined the victim of the assault was not without wrongdoing, having violated the employer’s reporting policies concerning the theft and the assault. Also, on the basis that his Emails to the co-worker were harassing and inappropriate, it issued him a written warning.

The employee refused to accept his punishment, but his complaint to the general manager went nowhere. Shortly afterwards, he was terminated without cause with four weeks’ severance pay.

The worker then complained to the British Columbia Workers’ Compensation Board (WorkSafeBC) about the assault and how he’d been treated by the employer, alleging he’d been terminated in retaliation for raising a health and safety issue at work. The Board dismissed his complaint. It said that although the employee raised a prima facie case, the employer had rebutted it by showing the termination occurred not because of his complaint, but because of his failure to follow the proper reporting policies, and for having sent inappropriate Emails to various people within the organization. The Board’s decision was upheld on appeal to the Workers’ Compensation Appeal Tribunal, leading the employee to escalate the matter to the Supreme Court of British Columbia on judicial review.

The court’s decision

The employee’s arguments focused on issues of procedural fairness and alleged substantive flaws with the decision. Noting first the standard of review, the court stated that case law only permits it to set aside the Tribunal’s decision if it is “patently unreasonable.” This meant the court owed the Tribunal’s decision a high degree of deference or leeway. It was only if the decision was “openly, clearly, evidently unreasonable” that the court would intervene.

One after the other, the court rejected each of the employee’s claims respecting a denial of procedural fairness. First, it held the Tribunal was right not to compel the employer to provide video recording footage of the assault since it had no relevance to the issue of whether the employer engaged in a prohibited action. Second, it said the employee had enough time to make his arguments, and that he’d failed to show how a power outage on the day of the hearing had prejudiced his ability to present his case, especially given the fact he failed to ask for an adjournment. The court criticized the employee’s allegation that the Tribunal vice-chair was biased, adding that it was a serious allegation that was completely unfounded and should not have been made.

As for the substance of the Tribunal’s decision, said the court, there was nothing patently unreasonable about it. The evidence supported the Tribunal’s decision, and even if the court would have decided differently, it wasn’t open to the court to set aside the decision.

Key takeaways

It is serious to allege retaliatory conduct by the employer in the context of a health and safety complaint, so attention will naturally turn to the sufficiency of the evidence. This case highlights how a paucity of evidence supporting the complaint, even when buttressed by procedural fairness concerns, won’t go too far.

Secondly, it’s easy to see how the case might have turned out differently if the employer lacked an independent rationale for the termination, allowing it to overcome the employee’s prima facie case. The underlying lesson for both complainants and employers in such scenarios? Make sure you gather and preserve the evidence to support your claim or support your defence.

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