The Nova Scotia Labour Board dismissed a discriminatory action complaint brought by an employee of the Department of Public Works on the grounds that it was filed outside the statutory 30-day time limit stipulated by the Occupational Health and Safety Act (OHS Act).
The ruling, issued by Vice-Chair Leigh Davis, highlights strict adherence to legislated filing deadlines for complaints of alleged employer discrimination.
Background and allegations
L.B. initially refused to perform traffic control duties on October 5, 2022, citing the task exceeded his “physical limitations.” Despite being cleared to return to work after a prior injury in 2021, he had no formal accommodations in place. After his refusal, the department could not find alternative work and sent him home with pay, given the extensive cleanup underway following Hurricane Fiona.
Three days later, L.B. did not return to work, leading to an automatic transition to Short Term Illness Leave (STI) as per department policy. During this period, L.B. received 100% of his salary for the first 40 days, subsequently reduced to 75% after December 7, 2022. L.B. testified that he only became aware of his STI status upon receiving a letter from the department’s payroll in December, which informed him of the pay adjustment. He asserted that he did not consent to this leave, and he regarded the placement on STI as illegitimate.
In February 2023, L.B. filed a complaint under Section 46 of the OHS Act, alleging that his transition to STI and the reduction in his salary constituted discriminatory action by his employer. However, by this time, four months had elapsed since the work refusal in October 2022.
Labour board findings
The central issue examined by the Labour Board was whether L.B.’s complaint was filed within the 30-day period required under the OHS Act. Under this provision, an employee must submit a written complaint within 30 days of the alleged discriminatory action or becoming aware of it.
Vice-Chair Davis reviewed the timeline and found that L.B.’s complaint, filed on February 9, 2023, was untimely. The Board’s decision cited that the latest possible date of discriminatory action relevant to L.B.’s case was October 5, 2022, coinciding with his initial work refusal and subsequent transition to STI on October 11, 2022. As Davis noted, “The statute does not afford the Board any discretion to extend this limitation period,” underscoring the rigid nature of the time limit mandated by the Act.
L.B. argued that his complaint was timely, asserting that the reduction in pay and loss of overtime and premium pay upon being placed on STI was discriminatory. He filed the complaint within a month of returning to work in January 2023. Nevertheless, Davis noted that L.B. explicitly cited the October 5, 2022 work refusal as “the most recent incident of discrimination” in his complaint documentation.
The Labour Board referenced past rulings emphasizing the “mandatory” nature of the 30-day period, including Centa v. R.J. MacIsaac Construction Ltd., which established that “even where decision-makers may be sympathetic to an appellant’s situation and where there may be extenuating circumstances… there is no authority to act on a complaint not received within the thirty-day notice period.”
Consideration of legislative provisions
Under Section 45 of the OHS Act, employers are prohibited from engaging in discriminatory action against employees who exercise their health and safety rights, including the right to refuse unsafe work. The Act defines discriminatory action broadly, encompassing various adverse employment consequences, such as dismissal, demotion, and reduction in salary or benefits.
The Labour Board, however, found no evidence to suggest that the department’s decision to place L.B. on STI or to adjust his salary was an adverse action motivated by his assertion of health and safety rights. The Board noted that L.B. was free to pursue other avenues for relief, including grievances and Workers’ Compensation, both of which he had already undertaken. Additionally, L.B. had initiated a complaint under the Human Rights Act, which may address aspects related to medical accommodations.
Conclusion
In dismissing the appeal, the Labour Board reiterated that it lacked jurisdiction to extend the 30-day time frame established by the OHS Act for filing discriminatory action complaints. Vice-Chair Davis concluded, “The evidence does not support a finding that there was any discriminatory action by the Employer within the 30-day time period preceding the filing of the complaint on February 9, 2023.”
For more information, see Beck v Department of Public Works, 2024 NSLB 118 (CanLII).
