AECOM Nuclear Services Canada (ACNS) did not engage in illegal reprisals when it fired an engineer who filed a harassment complaint against a supervisor under workplace safety legislation, the Ontario Labour Relations Board (OLRB) has ruled.
Background
R.D., employed by ACNS from May 16, 2022, to Nov. 28, 2022, claimed she was dismissed due to her harassment complaint under section 50 of the Occupational Health and Safety Act.
ACNS countered that the termination was due to her inability to work respectfully with colleagues, not her harassment complaint.
The Case
R.D.’s primary task at ACNS involved reviewing procedures and recording project events in the company’s Corrective Action Program (CAP). She reported to several supervisors, including R.M. and K.Z. Conflicts arose between the engineer and K.Z., particularly regarding procedural responsibilities and charge codes for training sessions.
R.D. characterized that supervisor’s actions as harassment in a Sept. 26, 2022, email to R.M., which led to a meeting on Sept. 29, 2022, aimed at resolving these issues.
During the meeting, R.D felt she was disrespected and criticized by ACNS’ president. The president testified that R.D. was agitated and disrespectful towards supervisor K.Z., leading him to document his concerns about R.D.’s behavior in an email on Oct. 3, 2022.
“You are encouraged to raise issues as any competent and conscientious employee would do but once a discussion has been had and direction is provided, you are to follow it,” he said in the email.
He also said: “I appreciate that you may have strong feelings and beliefs about certain aspects of the work that you do. That is good and should lead to quality work. What is not acceptable is to show lack of regard for your fellow employees. At last week’s call you showed a lack of respect and were very aggressive towards your co-worker, who was on the call. I would encourage you to maintain a civil tone and to avoid inflammatory language in you verbal and written remarks. They are not appropriate and are inconsistent with the culture that we encourage at AECOM. I would ask that you reflect on this and change your behaviours in that regard.”
R.D. responded by highlighting her health conditions and continued to express dissatisfaction with the supervisor’s performance.
Accommodation requests
Prior to the hearing, Dow requested accommodations due to her health conditions, which included frequent breaks and a support person.
These requests were granted by ACNS. Despite these accommodations, tensions remained high, and R.D.’s communications often reflected her frustration with R.Z. and the CAP process.
It is notable that R.D. never officially provided the ACNS with medical documentation indicating that she required a workplace accommodation due to her health conditions.
Termination decision
The president testified that he decided to terminate her employment on Oct. 21, 2022, due to her continued disrespectful treatment of K.Z. and refusal to work co-operatively.
R.D. alleged that the president called her incompetent during the Sept. 29, 2022, meeting. But during cross-examination, he refuted that allegation.
“He testified that he does not view her as incompetent. He says that her issue is that she cannot work respectfully with others,” the board said.
The decision to terminate her employment was delayed until Nov. 28, 2022, pending the results of an internal harassment investigation, which ultimately did not substantiate R.D.’s claims.
OLRB ruling
The board said the timing of the termination, coming so close to R.D. filing harassment complaints, called for a “compelling explanation” from the employer that it wasn’t reprisal.
The OLRB ruled that ACNS had met its burden under subsection 50(5) of the Act to prove that the termination was not related to her harassment complaint. The ruling emphasized that R.D.’s dismissal was due to her behaviour towards colleagues and her dismissive attitude towards the company’s efforts to address her concerns.
“People have different ways of expressing disagreement in the workplace but, on balance, it was not unreasonable for (the president) to conclude that (the engineer’s) manner of referring to and communicating with (R.Z.) was unacceptable,” the board said.
“The only motivation for (the president’s) decision to terminate (R.D.’s) employment was her treatment of (the supervisor) and her perceived inability to work cooperatively with her colleagues.”
The board found no evidence of a causal link between R.D.’s harassment complaint and her termination, dismissing her application.
Lessons for Employers and HR Professionals
- Document Performance Issues: Ensure that all performance-related concerns are documented, especially when they involve interpersonal conflicts.
- Follow Established Procedures: Adhere strictly to company policies for addressing harassment complaints, including thorough investigations and appropriate follow-up actions.
- Clear Communication on Accommodations: Offer and document accommodation options transparently, and ensure employees understand the process for requesting and receiving necessary support.
For more information, see Regan Dow v AECOM Nuclear Services Canada (ACNS), 2024 CanLII 53951 (ON LRB).
