E-mails Sink Employer in Safety-Retaliation Case: “Carefully Chosen Ruse” Found

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, an adjudicator has held, finding a violation of the Canada Labour Code.

A Border Services Officer with the Canada Border Services Agency 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 e-mails sent by CBSA, one of which said that she had “pulled a work refusal”.

The adjudicator found that the tone of the e-mails showed that 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 e-mails 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 PSLRB 40 (CanLII)

Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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