The Alberta Labour Relations Board has directed an Occupational Health and Safety (OHS) officer to reconsider a complaint by a former employee of Amazon Data Services Canada who alleges he was terminated for raising safety concerns about warehouse flooring.
In a decision dated March 15, 2024, Vice-Chair Jeremy D. Schick found that the OHS officer’s report dismissing D.M.’s complaint was unreasonable and applied the wrong legal test under the Occupational Health and Safety Act. The case has been sent back for further investigation and a new report.
Background of the complaint
D.M. filed a disciplinary action complaint under section 18 of the Occupational Health and Safety Act, S.A. 2020, c O-2.2 (the “Act”), alleging that his termination was a reprisal for reporting safety concerns to Amazon about the flooring in its warehouse. The OHS officer’s report dated Dec. 6, 2023, acknowledged that D.M. was acting in compliance with the Act when he raised the concerns and that he faced disciplinary action through termination.
However, the officer concluded that Amazon had demonstrated the termination was for reasons other than the safety complaints. Specifically, the officer stated, “The Respondent has been able to demonstrate that the larger part of the reasons provided for the termination are not a result of reporting health and safety concerns.”
Board’s findings
Upon review, the ALRB focused on whether the officer applied the correct legal test in determining if the disciplinary action was taken “by reason of” D.M.’s compliance with the Act. Vice-Chair Schick highlighted that the proper interpretation of section 18 is that if the act of compliance was “a reason” for the disciplinary action—even if not the sole or primary reason—it constitutes a breach of the Act.
The vice-chair cited previous decisions to support this interpretation, noting, “The appeal body has indicated on numerous occasions that section 18 of the Act… must be interpreted in such a manner that if the act of compliance was ‘a reason’ for the disciplinary action… this constitutes a breach of the Act.”
The ALRB found that the officer’s statement about “the larger part” of the reasons for termination suggested that the act of compliance may have been a factor, albeit a smaller one. This approach, according to the vice-chair, reveals a fundamental error in applying the correct test.
“To dismiss a complaint, the officer must be satisfied the act of compliance was not ‘a reason’ for the disciplinary action,” Vice-Chair Schick wrote. “The statement having raised the issue, that the report does not transparently or sufficiently address such ‘lesser reasons’ for termination also undermines its reasonableness.”
Assessment of Amazon’s reasons for termination
Amazon had cited two reasons for D.M.’s termination aside from his safety complaints: alleged violations of its confidentiality policy and purported unprofessional and rude comments made by D.M. to a vendor about another vendor.
The OHS officer’s report found reason (a) to be “partially correct,” acknowledging one of the alleged breaches of confidentiality. However, for reason (b), the officer stated it was “outside OHS jurisdiction and therefore cannot assess for validity.”
Vice-Chair Schick criticized this approach, stating that assessing the “accuracy” or “validity” of the employer’s reasons is not the primary question. Instead, the focus should be on whether those reasons were the actual and sole reasons for termination.
“Questions of whether purported reasons for disciplinary action are ‘accurate’ or ‘valid’ are not the appropriate question to be investigated or answered by an OHS officer in a disciplinary action complaint,” he wrote. “An employer honestly asserting a non-OHS related basis for termination that turns out to be incorrect… does not breach the Act.”
Next steps
The ALRB’s decision mandates that the OHS officer reconsider the complaint, applying the correct legal test and conducting any further investigation deemed appropriate.
“The appeal body is satisfied the appropriate remedy in this case is to remit the matter back to the officer… and to issue a new report that applies the appropriate analysis,” Vice-Chair Schick concluded.
For more information, see Martin v Amazon Data Services Canada Inc., 2024 ABOHSAB 12 (CanLII).
