An appeal body has overturned an occupational health and safety (OHS) officer’s decision in a disciplinary action complaint case in Alberta, ruling that the officer applied the wrong legal test and failed to provide a rational and coherent analysis. The case has been remitted for reconsideration, with instructions to reassess whether an employee’s termination was, at least in part, a result of exercising rights under the Occupational Health and Safety Act.
The appeal was filed by L.B., a former journeyperson machinist at Global Power Technologies (GPT), who alleged that GPT disciplined and ultimately terminated him in retaliation for reporting a workplace injury. The initial complaint, filed under section 18 of the Occupational Health and Safety Act, was dismissed by an OHS officer, who found that GPT provided a non-OHS reason for the termination. L.B. appealed that decision, arguing that the officer misapplied the legal test and failed to properly assess whether his compliance with OHS legislation factored into the disciplinary action.
Background
L.B. was injured at work on February 3, 2021, and claimed that GPT interfered with his medical care by requiring him to attend an examination with a company-selected doctor, allegedly under false pretenses. He also alleged that GPT pressured him to return to work without modified duties, despite his doctor’s recommendation. Additionally, L.B. argued that his removal from GPT’s health and safety (HS) committee and a series of disciplinary measures—culminating in his termination on September 23, 2021—constituted retaliatory action prohibited under the Act.
GPT denied the allegations, asserting that it followed standard return-to-work procedures. The company claimed that L.B. was not forced to return to work without modifications and that he was removed from the HS committee as part of an organizational restructuring. GPT also cited a series of disciplinary actions, including warnings, suspensions, and a performance improvement plan, as justifications for L.B.’s termination.
OHS officer’s findings
The OHS officer’s report assessed whether GPT’s actions constituted a breach of section 18 of the Act, which prohibits disciplinary action against workers for complying with OHS legislation. The officer applied a three-part test:
- Whether the complainant was acting in compliance with the Act or an OHS order.
- Whether the complainant was subjected to disciplinary action as defined under the Act.
- Whether the employer demonstrated that disciplinary action was taken for a reason unrelated to the complainant’s compliance with the Act.
The officer concluded that L.B. was subject to disciplinary action but found that GPT provided a plausible non-OHS-related reason for the termination. The officer’s report stated: “Given the above, I conclude that it was more likely than not that the complainant’s employment was terminated for a non-OHS reason.”
Appeal body’s decision
The appeal body ruled that the officer’s decision was unreasonable and failed to properly apply the legal test. Specifically, it found that:
- The officer did not sufficiently assess whether L.B.’s compliance with the Act was a reason for the disciplinary action, even if it was not the sole or primary reason.
- The report did not address all alleged disciplinary actions, including L.B.’s removal from the HS committee and the requirement to see an OIS doctor.
- The officer failed to properly scrutinize GPT’s justifications for disciplinary measures, including whether they were pretextual.
The appeal body noted that under established OHS case law, an employer must demonstrate that a worker’s compliance with the Act was not a factor in disciplinary action. The decision cited Martin v. Amazon Data Services Canada Inc., 2024 ABOHSAB 12, which held that an employer’s burden is not just to provide an alternative reason for termination but to show that compliance with the Act was not a reason.
The appeal body also found that the officer improperly focused on whether GPT followed progressive discipline measures rather than whether the discipline was motivated, at least in part, by L.B.’s assertion of OHS rights. It emphasized that a disciplinary action complaint is not a wrongful dismissal claim and that the key issue was whether OHS-related activities influenced GPT’s decisions.
Remedy
Given the gaps in the officer’s analysis, the appeal body determined that it could not vary the decision or substitute its own findings. Instead, it remitted the case for reconsideration, directing the officer to:
- Apply the correct legal test and assess whether L.B.’s compliance with the Act was a reason for the disciplinary actions.
- Provide a clear and rational analysis of whether each alleged action constituted disciplinary action under section 18 of the Act.
- Scrutinize GPT’s explanations for its disciplinary measures, particularly in light of L.B.’s allegations that they were pretextual.
The officer has been given the discretion to conduct further investigation as necessary.
For more information, see Barnson v Global Power Technologies, 2025 ABOHSAB 5 (CanLII).
