The Alberta Labour Relations Board has ruled that a disciplinary action complaint filed by a former employee of Capital Power Corporation will be remitted back to Occupational Health and Safety (OHS) for reconsideration.
The decision comes after the former employee, who worked as a Market Forecast Specialist at Capital Power, alleged that she was constructively dismissed following her refusal to return to work under unsafe conditions, along with reports of bullying and harassment in the workplace.
The case centres on the appellant’s complaint under the Occupational Health and Safety Act, which alleges that Capital Power violated her rights by taking disciplinary action against her. The former employee claimed that the company failed to accommodate her work restrictions after she returned from short-term disability leave, forcing her to resign. Capital Power, on the other hand, maintains that they acted in accordance with the law and did not subject the appellant to disciplinary action.
Background of the case
The appellant, employed by Capital Power since 2019, raised multiple complaints of bullying, harassment, and sexual harassment between 2019 and 2022. After the company investigated her claims, it found most were unsubstantiated, though corrective action was taken in response to one claim. Dissatisfied with the company’s investigation, the appellant also alleged bias during a hiring process in 2021, which led to further complaints.
In December 2021, the appellant suffered a panic attack following a conversation with her employer. She claims that while having the panic attack, she slipped on ice, injuring herself and later going on short-term disability leave.
The appellant filed additional complaints during her leave, which she says were ignored. Upon receiving clearance from her doctor to return to work in July 2022, with restrictions on whom she should work with, Capital Power informed her that while some accommodations could be made, the company could not accommodate all of her conditions. The company suggested she apply for long-term disability benefits instead.
The appellant resigned on September 19, 2022, citing constructive dismissal and claiming that Capital Power had made it impossible for her to return to work. She later filed a Disciplinary Action Complaint (DAC), alleging that the company’s refusal to accommodate her restrictions and subsequent resignation amounted to disciplinary action in violation of the Act.
The decision of the Occupational Health and Safety Officer
The initial DAC report dismissed the appellant’s complaint, finding no evidence that Capital Power had engaged in disciplinary action as defined by the Act. The Officer reviewed three key questions: whether the appellant was engaged in a protected activity under the Act, whether she was subjected to disciplinary action, and if so, whether the company’s actions were for reasons unrelated to her protected activity.
The Officer found that while the appellant had engaged in protected activities by reporting harassment and unsafe work, there was no evidence to suggest that Capital Power had taken any disciplinary action against her. The company had paused its investigations into her claims while she was on disability leave and argued that her resignation was voluntary. The Officer concluded that Capital Power’s inability to accommodate the appellant’s restrictions did not constitute disciplinary action.
Appeal and ruling by the Labour Relations Board
The appellant appealed the OHS decision, alleging that the investigation was procedurally unfair and that the Officer was biased. She also argued that the Officer failed to properly assess whether her refusal to return to work under unsafe conditions and her reports of harassment influenced the company’s decision not to accommodate her.
After reviewing the case, the Alberta Labour Relations Board found that the DAC report was unreasonable, particularly in its analysis of whether the appellant had been subjected to disciplinary action. The Board stated that the DAC report “makes conclusions or findings that are contrary to the language of the Act” and failed to apply the correct legal test for determining whether disciplinary action had occurred.
It noted that Capital Power’s refusal to allow the appellant to return to work and its suggestion to apply for long-term disability benefits “adversely affected [her] terms and conditions of employment,” which falls under the definition of disciplinary action.
Furthermore, the Board found that the OHS Officer had not adequately investigated whether the appellant’s protected activities — namely, her reports of harassment and unsafe work — had influenced Capital Power’s decision not to accommodate her. As a result, the Board ruled that the case should be remitted to OHS for reconsideration, allowing for further investigation into the appellant’s claims.
The Board also rejected the appellant’s claims of bias against the OHS Officer, stating that “there is no reasonable apprehension of bias” in the case. It added that the Officer’s attempt to assist the parties with a voluntary resolution before investigating the complaint was standard practice and did not indicate bias.
Next steps
The ruling directs OHS to reconsider the case, with the potential for further investigation into whether Capital Power’s refusal to accommodate the appellant was influenced by her protected activities. Both parties may provide additional evidence during the reconsideration process. The ruling allows for the matter to be reconsidered by the same OHS Officer, but either party can request a different Officer within two weeks of the decision.
For more information, see Appellant v Capital Power, 2024 ABOHSAB 15 (CanLII).
