The Workers’ Compensation Appeal Tribunal (WCAT) has denied a worker’s claim for a financial remedy under section 50 of the Workers Compensation Act, despite confirming that his termination by the employer involved a prohibited action.
The decision reinforces that while a finding of prohibited action can establish a breach of the Act, it does not automatically entitle a worker to compensation. In this case, the tribunal concluded that the worker would have been terminated regardless of the protected activity, due to pre-existing and ongoing performance and conduct issues.
“I find that by the end of May 2020, the worker enjoyed little if any job security with the employer,” the tribunal wrote. “I conclude that the worker would have been terminated immediate to June 11, 2020, regardless of his complaint about Mr. X and the prohibited action.”
Worker terminated after refusing to work with supervisor
The worker, who had been employed since October 2018, was dismissed on June 12, 2020, one day after refusing an assignment to work with a supervisor (“Mr. X”) who was subject to an ignition interlock device due to a past alcohol-related offence. The worker had raised a safety concern about Mr. X drinking on the job, citing a previous complaint made in 2019.
The employer investigated and found no evidence supporting the worker’s allegation. It proceeded with the termination, citing the worker’s refusal to work with Mr. X, along with concerns about his conduct and performance. These included multiple incidents involving inappropriate language, swearing at co-workers, and a pattern of strained relationships with his team.
In a prior decision (A23021117), the tribunal found that the termination was at least partly tainted by the worker’s refusal to work based on a safety concern, and thus constituted a prohibited action under the Act.
Tribunal finds termination inevitable
Despite that finding, the tribunal rejected the worker’s appeal for a remedy, applying the “make whole” principle under section 50(2) of the Act. That provision allows the Board to order compensation where a prohibited action has occurred, but only to the extent necessary to return the worker to the position they would have been in had the action not occurred.
The tribunal found that the worker’s continued employment was not foreseeable, citing extensive evidence that his relationship with the employer and co-workers had deteriorated by late May 2020.
The tribunal placed particular weight on a May 29, 2020, email from Mr. X to the employer: “I am willing to take him with me for the next week. I will work hard yet normal hours. See if he can keep up. His last chance. Otherwise I and the crew will not work with him.”
That statement, according to the tribunal, “establishes material support for the employer’s evidence overall,” including co-worker statements that described the worker as argumentative, critical, and difficult to work with.
Disciplinary documents further supported the employer’s position. A September 2019 letter cited “unacceptable behaviour and non-performance of duties,” while a May 2020 letter served as a final warning for cursing and yelling.
Although the May letter was not formally delivered, the tribunal accepted the employer’s account that the contents were shared verbally with the worker and placed on his file. “These two matters, along with the statements from the worker’s co-workers, demonstrate that on May 21, 2020, the employer was planning to terminate the worker if other issues arose and/or continued,” the tribunal wrote.
Claims for lost wages and expenses rejected
The worker had claimed a total of $245,679.15 in lost wages and out-of-pocket expenses resulting from the termination. This included wage loss from June 2020 to February 2023, hotel and moving expenses, rent differentials, veterinary bills, and therapy costs.
The tribunal rejected the claim in its entirety, stating that none of the expenses could be causally linked to the prohibited action. “It is a common misconception that simply because one thing follows another, it must have been caused by that first thing,” it wrote.
On the issue of foreseeability, the tribunal concluded that even if the prohibited action had not occurred, the worker’s employment would have ended at the same time. “The worker enjoyed no job security with the employer,” the decision stated, and therefore any claimed losses did not flow from the prohibited action.
The tribunal also noted that some claimed expenses, including the sale of the worker’s home and dog care, were too remote in time or causality to be compensable. “It is difficult to conceive of anything beyond a tenuous causal connection between the worker’s termination in June 2020, and expenses which included the cost of the surgery for the worker’s dog in November 2021,” it wrote.
No remedy under Act despite Board’s finding
The tribunal took care to clarify that the finding of prohibited action under the Act does not equate to a finding of wrongful dismissal under employment law. “The Board, and then a WCAT panel, acknowledged that the worker was dismissed immediate to his report of a health and safety violation,” the tribunal noted. “The conclusion was that the taint theory applied … however, neither the Board’s nor the WCAT panel’s findings speak to whether the worker was wrongfully dismissed for the purposes of any other administrative body or under the common law.”
Ultimately, it concluded that awarding a remedy would not be consistent with the purpose of section 50, which aims to restore a worker to their prior position—not to place them in a better one.
“A wage-loss remedy must only compensate the worker for losses which were a reasonably foreseeable result of the employer’s discriminatory action,” it stated, citing a prior WCAT decision. “The remedy is not intended to put the worker in a better position than he or she otherwise would have experienced.”
The tribunal upheld the Board’s April 3, 2024 decision and made no order for compensation.
For more information, see A2401413 (Re), 2025 CanLII 23796 (BC WCAT).
