West Fraser Mills, operating as Ranger Board, partially succeeded in its appeal against an Occupational Health and Safety (OHS) Officer’s Report that found the company breached Alberta’s Occupational Health and Safety Act by disciplining an employee.
The Alberta Labour Relations Board remitted the matter back to the Officer for reconsideration, citing unreasonable analysis in the original decision.
Vice-Chair Jeremy D. Schick determined that the Officer’s Report did not adequately assess whether West Fraser Mills had proven that the disciplinary actions taken against S.G. were unrelated to his compliance with the Act or its associated Occupational Health and Safety Code. The company had suspended S.G. without pay for one day and issued a disciplinary letter, actions the Officer initially found were linked to S.G.’s protected activities under the legislation.
The appeal centred on two main arguments. First, West Fraser Mills contended that the Officer unreasonably concluded that S.G.’s actions constituted an “act of compliance” with the Act or Code. S.G. had contacted OHS seeking an investigation report from the company under section 391.1 of the Code, referencing sections 33(6)(b)-(d) of the Act. However, a Director’s Order dated December 1, 2021, had varied this section of the Code, removing the application of section 33(6)(d) for all employers and prime contractors.
The company argued that since the obligation to provide the report had been removed, S.G.’s complaint could not be considered an act of compliance. The Officer disagreed, reasoning that S.G. “would have reasonably considered himself entitled to the investigation report, as Director’s variance orders are not reflected in the publicly accessible version of the Code itself.”
Second, West Fraser Mills asserted that, even if S.G.’s actions were an act of compliance, the Officer unreasonably analyzed whether the company had proven that the disciplinary actions were unrelated to that compliance.
Applying a standard of reasonableness, the ALRB addressed both issues. On the first point, Vice-Chair Schick emphasized a broad and purposive interpretation of the legislation, noting that the Act should be given “the fair, large and liberal construction and interpretation that best ensures the attainment of its objects.”
He stated, “The average employee asserting rights under OHS legislation may well fail to appreciate regulatory complexities that could negate their complaint, and it would be a severe interpretation of a section purporting to protect employees from reprisal to strip the employee of the protections of that section for failing to understand those complexities.” The ALRB concluded that the Officer reasonably determined S.G.’s contact with OHS could constitute an act of compliance.
Regarding the second issue, the ALRB found the Officer’s analysis lacking. The Officer had focused on whether West Fraser Mills could “prove” that the alleged incident leading to discipline—a purported act of disrespectful behaviour by S.G. toward a co-worker—had occurred. The Officer concluded that, because the company did not provide sufficient evidence that the incident happened, it failed to prove that the disciplinary actions were unrelated to S.G.’s act of compliance.
Vice-Chair Schick criticized this approach, stating that the Officer did not address the fundamental question of whether the company’s asserted reasons for discipline were credible and genuinely unrelated to the act of compliance. “The focus ought not to be on whether the employer can now ‘prove’ whether the incident took place,” he wrote. “The ALRB cannot be satisfied that the Report transparently assesses the necessary question.”
He further explained that in disciplinary action complaints, the Officer’s role is not to determine if there was “just cause” for discipline but to assess whether the employer’s stated reasons are the actual and only reasons, and that the act of compliance did not influence the decision. “The Officer’s task is to assess the credibility of the employer’s asserted grounds of discipline in all of the circumstances, and may draw inferences where appropriate and necessary, especially if ‘things don’t add up,'” Vice-Chair Schick noted.
The ALRB highlighted the importance of a proper analytical framework, referencing previous decisions that set out the necessary steps for Officers in such cases. These include recognizing that the employer bears the onus of proving the disciplinary action was unrelated to the act of compliance and thoroughly scrutinizing the employer’s asserted reasons without simply accepting them at face value.
As a result of these findings, the ALRB remitted the Officer’s Report and the resulting Order back for reconsideration. The Officer is directed to reassess the case, applying the correct analytical approach as outlined by the ALRB.
For more information, see West Fraser Mills Ltd. o/a Ranger Board v. Gugumus, 2024 ABOHSAB 18 (CanLII).
