The British Columbia Workers’ Compensation Appeal Tribunal (WCAT) has denied a worker’s appeal alleging her employer terminated her employment in retaliation for raising safety concerns about sexual harassment. The decision confirms that the employer did not engage in a prohibited action under the Workers Compensation Act (Act).
The worker, identified as T.H., was employed as a health, safety, and environment co-ordinator with a construction company since July 2020. She filed a complaint with the Workers’ Compensation Board (Board), alleging her termination on Jan. 24, 2023, was in retaliation for safety concerns she raised. Specifically, T.H. claimed she had reported sexual harassment by co-workers to the employer on Dec. 22, 2022, and Jan. 12, 2023. She also alleged the employer had intimidated and coerced her.
In December 2023, a Board legal adjudicative officer (LAO) denied her complaint. The LAO found that while T.H. had established a basic case of prohibited action regarding her termination, the employer successfully rebutted this by demonstrating that the termination was not related to her safety complaints. The LAO also found no evidence of intimidation or coercion by the employer.
T.H. appealed the decision to the WCAT, seeking acceptance of her prohibited action complaint. The central issue before the Tribunal was whether the employer took prohibited action against T.H. for reasons prohibited by section 48 of the Act.
Analysis of the Tribunal
The Tribunal examined four key elements to determine if a prohibited action occurred:
Negative employment consequence: The Tribunal acknowledged that termination is considered a prohibited action under section 47 of the Act. T.H. provided evidence of her termination, including a letter from the employer dated January 24, 2023.
Protected safety activity: T.H. had raised concerns about sexual harassment, which the Tribunal agreed constituted a protected safety activity under section 48 of the Act. The Tribunal stated, “I find the worker has established a basic case that she raised concerns with her employer about sexual harassment and safety relating to her interactions with her two co-workers.”
Causal connection: T.H. argued there was a causal connection between her safety complaints and her termination. The Tribunal found that from her perspective, this connection was established, noting, “I find that the worker has established that, from her perspective, there was a causal connection between her raising safety concerns and the termination of her employment.”
Employer’s rebuttal: The employer contended that the termination was due to T.H.’s breaches of company policies, including the code of conduct and harassment prevention policies. The Tribunal focused on whether any part of the employer’s decision was motivated by T.H.’s safety complaints.
Employer’s justification
The employer argued that T.H. was terminated because of her inappropriate behaviour towards co-workers, which violated company policies. Evidence showed that T.H. had an “outburst” on Dec. 15, 2022, making remarks containing sexual and racial comments and profanity. The employer conducted an investigation into complaints made against her, interviewing eleven witnesses, including T.H.
The Tribunal found, “Based on the available evidence, I find on a balance of probabilities that the employer conducted a full and fair investigation into the complaints against the worker and made its decision to dismiss her based on that investigation.”
Tribunal’s conclusion
The Tribunal determined that the employer had successfully rebutted the prima facie case of prohibited action. It concluded that the termination was solely due to T.H.’s violations of company policies and not related to her safety complaints.
“I find, on the balance of probabilities, that the evidence supports a conclusion that the employer terminated the worker for behaving in a manner which violated the employer’s code of conduct and its harassment prevention policies and that no part of the employer’s decision to terminate her employment was because she raised her own concerns about harassment in the workplace,” the Tribunal stated.
Regarding the allegations of intimidation and coercion, T.H. claimed the employer tried to “get rid of [her] Human Rights Complaint in the conditions of [her] release.” The Tribunal found that offering a severance package in exchange for a release does not constitute coercion or intimidation. It noted, “There was no pressure or force to remove the worker’s right to choose or to enforce her rights under the Act.”
Lessons from this ruling
This decision underscores the importance of employers conducting thorough and impartial investigations into workplace misconduct, even when the employee involved has raised safety concerns. Employers must ensure that disciplinary actions are based on legitimate, policy-based reasons and are not influenced by any protected activities the employee may have engaged in.
For HR professionals, the case highlights the need for clear documentation of all investigative steps and the rationale behind termination decisions. It is crucial to demonstrate that actions taken are consistent with company policies and are applied fairly across all employees.
Employment lawyers should note the Tribunal’s application of the “taint” principle, which requires that no part of the employer’s decision to terminate an employee is related to prohibited grounds under the Act. The employer bears the burden of proof to show that the termination was not motivated by the employee’s protected activities.
Additionally, the ruling clarifies that offering a severance package in exchange for a release of claims does not amount to coercion or intimidation, provided the employee is not pressured or forced into accepting the terms.
Key takeaways
Conduct unrelated to safety complaints: Employers can terminate employees for legitimate reasons unrelated to safety complaints, such as violations of company policies.
Burden of proof: Employers must be prepared to demonstrate that no part of their decision was influenced by the employee’s protected activities under the Act.
Fair investigations: Thorough and unbiased investigations are critical, especially when both parties have lodged complaints against each other.
Release agreements: Offering additional severance in exchange for a release is permissible and does not constitute coercion if the employee has the freedom to accept or decline.
Conclusion
The WCAT’s decision affirms that while employees are protected when raising safety concerns, these protections do not shield them from the consequences of their own misconduct. Employers must handle such situations carefully, ensuring that all actions are policy-driven and free from any retaliatory motives.
The appeal was denied, and the Tribunal confirmed the Board’s decision dated Dec. 13, 2023, stating, “I find the employer has not committed a prohibited action.”
For more information, see A2302616 (Re), 2024 CanLII 98996 (BC WCAT).
