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B.C. tribunal confirms employer retaliation against fitness facility worker for reporting safety and harassment issues

by HR Law Canada

The British Columbia Workers’ Compensation Appeal Tribunal (WCAT) has confirmed an earlier ruling that an employer retaliated against a fitness facility worker who raised safety issues, including bullying and sexual harassment among staff and clients.

This ruling upholds the initial decision made by a Board legal adjudicative officer (LAO) from WorkSafeBC. That decision was appealed by the employer.

The woman, who worked as a coach and operations director, filed her complaint in November 2020.

In a detailed examination of the case, the Tribunal found that the worker was indeed an employee under the Workers Compensation Act, despite the employer’s claim that she was a contractor. This distinction was crucial, as it determined her eligibility for protection under the Act.

“The LAO considered this argument and found that the worker performed primarily labour services for the employer in her role as operations director, which she began in June 2020,” the WCAT said.

“The employer exercised a degree of control over her work.  The worker was performed at the employer’s facility and used the employer’s equipment.  Despite the fact the worker was paid a flat rate without statutory deductions, she was not acting as an independent business enterprise.  She was not able to earn a profit.  She had no other employers.  Therefore, she was worker was a ‘worker’ as defined by the Act.”

The evidence showed that the worker was terminated from her role as operations director and was effectively dismissed as a coach shortly after she reported safety complaints. This timing was a key factor in establishing a link between her complaint and the employer’s actions, it said.

The employer’s defense, claiming financial impropriety on the worker’s part, was found insufficient to overturn the initial ruling. The Tribunal concluded that the worker’s termination was, at least in part, a response to her raising safety concerns, thus constituting a prohibited action under the Act.

The Tribunal’s decision underscores the importance of whistleblower protections in the workplace. The next phase of the case will focus on determining a remedy for the worker, the WCAT said.

“I am unaware whether a remedy has been issued,” it said. “If not, the parties may wish to utilize the free, impartial and without prejudice mediation services available through the WCAT registry to resolve this matter.”

No costs were claimed or awarded in relation to the appeal.

For more information, see A2202622 (Re), 2023 CanLII 105620 (BC WCAT)

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