The Alberta Occupational Health and Safety Appeal Body has rejected an appeal by an HR professional who alleged his termination from Carrington Holdings violated the province’s workplace safety legislation.
The decision confirms that employers can terminate employees for reasons unrelated to compliance with the Occupational Health and Safety Act, provided they can demonstrate legitimate grounds.
Background
R.W. served as the Director of People and Culture at Carrington Holdings Ltd., a residential construction company, from Sept. 12, 2022, until his termination on Feb. 13, 2024. R.W. filed a Disciplinary Action Complaint under section 18 of the Act, asserting that his termination was in retaliation for reporting workplace harassment and participating in an Occupational Health and Safety (OHS) inspection.
The Officer’s Report dated May 2, 2024, concluded that Carrington Holdings Ltd. did not contravene the Act. The company provided sufficient evidence that R.W.’s termination was for reasons other than his compliance with the Act or the OHS Code. Dissatisfied with this finding, R.W. appealed under section 45(2)(e) of the Act.
Preliminary review and masking request
Vice-Chair Karen Scott conducted a preliminary review to determine if the appeal should proceed. R.W. requested anonymization of his name due to sensitive medical information potentially being disclosed. The Appeal Body declined to anonymize his name, noting that it was unnecessary as no sensitive medical information was discussed in the decision.
Grounds for summary dismissal
Upon reviewing the Notice of Appeal, the OHS Record, the Respondent’s Statement, and R.W.’s Reply, the Appeal Body concluded that the appeal had no reasonable prospect of success. The grounds for this decision are as follows:
No evidence of retaliation: The Appeal Body found that Carrington Holdings Ltd. had been considering R.W.’s “fit within the organization” for several months prior to his termination. Email communications among the company’s executives indicated concerns about R.W.’s conduct and alignment with company culture, particularly following incidents on February 6 and 9, 2024. These discussions and decisions occurred before R.W. reported harassment to the CEO on February 7, 2024, and before the company was aware of the OHS inspection.
Timing of termination decision: Evidence showed that the decision to terminate R.W.’s employment was made prior to his participation in the OHS inspection on February 12, 2024. The executives involved in the termination decision were not aware of the OHS Officer’s visit at the time the decision was made. Therefore, R.W.’s compliance with the Act or the OHS inspection was not a factor in his termination.
Legitimate grounds for termination: The company cited R.W.’s unprofessional conduct during meetings on February 6 and 9, 2024, as reasons for his termination. Reports from other employees indicated that R.W. made negative comments about company morale, disclosed confidential information, and exhibited an attitude that made colleagues uncomfortable.
No procedural unfairness: R.W. argued that the Officer erred by accepting submissions from C.B., a Human Resources Manager from a related company, on behalf of Carrington Holdings Ltd. The Appeal Body found no procedural unfairness, noting that the Officer is permitted to receive information from representatives authorized by the Respondent.
Legal analysis
Under section 18 of the Act, no person shall take disciplinary action against a worker for acting in compliance with the Act or related regulations. The Appeal Body applies a three-part test to assess such complaints:
- Was the complainant acting in compliance with the Act? Yes. R.W. reported psychological hazards and participated in an OHS inspection.
- Was the complainant subjected to disciplinary action? Yes. R.W. was terminated from his employment.
- Did the employer establish that the disciplinary action was for reasons other than compliance with the Act? Yes. The employer demonstrated that the termination was based on R.W.’s conduct and concerns about his fit within the organization, unrelated to his compliance activities.
The Appeal Body emphasized that an appeal is not an opportunity to reargue the merits of the complaint or to assess whether the employer had just cause for termination. The focus is solely on whether the disciplinary action was taken because of the employee’s compliance with the Act.
For more information, see Wiseman v Carrington Holdings Ltd., 2024 ABOHSAB 21 (CanLII).
