No adverse effect, no connection to safety complaints means no reprisal

Non-disciplinary coaching letter not a reprisal for worker’s safety complaints: board

No adverse effect, no connection to safety complaints means no reprisal
Jeffrey R. Smith

A non-disciplinary coaching letter was not a reprisal against a worker for raising workplace health and safety concerns, the Manitoba Labour Board has ruled.

The worker was employed with Hudbay Minerals, a copper-based mining company based in Toronto that operates mines in Manitoba, since around 2013. In 2018, he started working in a safety position with Hudbay.

In his role, the worker developed skills and knowledge related to workplace health and safety, particularly its importance in the mining environment.

A year before his appointment to the safety position, in 2017, the worker witnessed a safety-related incident involving a co-worker. He reported it to Hudbay and submitted a written report at the company’s request. Hudby launched an external investigation that led to the dismissal of the employee involved.

A casino worker was fired for rude and insubordinate behaviour, not for an informal health and safety complaint, said the Ontario Labour Relations Board.

Verbal complaints

In 2018, the worker was involved in a verbal altercation at work. He told his supervisor, but he believed that his supervisor didn’t address the matter and things escalated. He didn’t submit a written complaint because Hudbay’s Anti-Harassment/Discrimination/Violence Policy only required verbal reporting of workplace violence.

In April 2019, a co-worker directed verbal threats at the worker. The worker raised the incident with his supervisor, but again he felt that it wasn’t properly addressed and he didn’t feel that his safety was assured.

On Jan. 27, 2020, a colleague made a respectful workplace complaint against the worker. Hudbay retained an independent investigator who interviewed the worker and put together a report on March 4 with several corrective and preventative actions. The worker met with the investigator and his supervisor to discuss the status of the respectful workplace complaint, and the investigator told him that a coaching letter would be issued to him.

The same co-worker verbally threatened the worker a second time On March 11, but when he reported it to his supervisor, again nothing was done.

A worker who raised safety concerns after a termination decision was not subject to a reprisal, said the Ontario Labour Relations Board.

Coaching letter

On April 28, the supervisor provided the worker with the coaching letter with expectations going forward. The worker asked for examples of specific incidents that led to the conclusions, but the supervisor didn’t know. Without more details, the worker assumed that the coaching letter was related to his raising of health and safety concerns.

The worker said that he had had enough and told Hudbay that he would no longer work until the company took measures to ensure his health and safety. He took a leave of absence on June 23.

Two months later, Hudbay informed the worker that his position was being discontinued and he remained on an approved leave of absence.

The worker filed a complaint of discriminatory action with Manitoba Workplace Safety and Health. He said that while the coaching letter was not disciplinary, it had a negative effect on his employment because it was in his file and would affect opportunities for promotions, raises, or bonuses. He also believed that the discontinuance of his position was related to the coaching letter, which was issued because of his safety complaints.

A worker’s dismissal after an OHS inspector’s visit was a reprisal for the worker’s OHS complaint, the Ontario Labour Relations Board found.

Officer’s decision overturned

A safety and health officer determined that the discriminatory action was founded and issued an improvement order to Hudbay. The company appealed, and the director of Workplace Safety and Health dismissed the complaint as not having a contravention of The Workplace Safety and Health Act (WSHA).

The worker appealed to the board.

The board noted that the WHSA prohibits employers from taking discriminatory action against workers based on their rights under the act, defining “discriminatory action” as “an act or omission which adversely affects any term or condition of employment.” An employee must establish that he raised issues of his safety or that of others under the WHSA and there is a connection between the employer’s action and the raising of the safety concerns, said the board.

The board found that the worker raised health and safety issues from 2017 to 2020 with each verbal complaint to his supervisor – which was a requirement of his safety position. However, the board also found that the coaching letter was not disciplinary and didn’t have adverse effects on his employment.

“[The coaching letter] is intended to outline the employer’s expectations of him in his role, which it is entitled to do," said the board. “While it may sit on the employee’s file, it does not form part of [his] disciplinary record, and it would be inappropriate to refer to it as [disciplinary]. There was no evidence led to suggest that the employer has relied upon the information contained in the letter to negatively affect the [worker].”

The board also found that, even if the coaching letter negatively impacted the worker, there was no evidence that there was a connection with him raising health and safety issues. The letter was a direct response to the respectful workplace complaint against him following an investigation. The worker may have disagreed with the investigation’s findings, but a complaint under the WHSA was not the forum to address such concerns, said the board in dismissing the appeal and upholding the director’s decision. See N.D.E. and Hudbay Minerals Inc., Re, 2023 CarswellMan 214.