An employer’s internal e-mails showed that a "professional standards investigation" conducted on an employee was actually a retaliation for the employee’s work refusal, violating the Canada Labour Code, an adjudicator has ruled.
A Border Services Officer with the Canada Border Services Agency (CBSA) refused to work due to certain security issues, including what she claimed was a need for an enhanced armed presence at the border.
In the midst of a hearing about whether the work refusal was justified, she supplied certain "protected" CBSA documents to her lawyer. The CBSA raised concerns, and conducted a "professional standards investigation" into the allegedly unlawful disclosure of the protected documents to her lawyer. An investigator concluded that the employee had breached CBSA Security Policy, and the CBSA then directed the employee to participate in a "learning conversation" regarding sharing of “protected” documents.
The employee claimed that the "learning conversation" was a reprisal for her work refusal. She obtained certain emails sent by CBSA, one of which said that she had "pulled a work refusal."
The adjudicator found that the tone of the emails showed the CBSA was frustrated with the employee’s work refusal, wanted her to stop pursuing the security matters, and hoped that the professional standards investigation would cause her to stop. Further, the use of the "learning conversation" was a "carefully chosen ruse" intended to avoid the finding that she was being disciplined because of her work refusal.
In the result, the adjudicator held that the CBSA had violated section 147 of Part II of the Canada Labour Code by retaliating against the worker for raising safety issues.
This decision demonstrates how all of an employer’s actions towards an employee, including investigations, will be scrutinized in safety-reprisal cases. Also, even the tone of emails can haunt an employer if they suggest frustration with the employee’s safety-related activities.
• Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 CarswellNat 1349 (Can. Public Service Lab. Rel. Bd.).
Adrian Miedema is a partner with Dentons Canada LLP in Toronto. He can be reached at (416) 863-4678 or firstname.lastname@example.org. Adrian's discussion of this case also appears in the Dentons blog www.occupationalhealthandsafetylaw.com.