Canada: When Is A Whistleblower Not A Whistleblower?

Last Updated: April 17 2014
Article by Stringer LLP

The internal responsibility system is an essential part of an organization's due diligence program.  Employees must be free to raise health and safety concerns so that management can investigate and address them.  Ordinarily, the act of raising those concerns would be considered protected activity under the Occupational Health and Safety Act, such that it would be unlawful to discipline or terminate an employee for doing so.  Indeed, even if an employer's reasons for imposing discipline or termination are 99% related to performance issues and 1% related to an employee exercising the right to raise health and safety concerns, the employer has committed an unlawful reprisal.

In a recent decision, the Ontario Labour Relations Board (the "Board") found that an employee did not suffer an unlawful reprisal when he was terminated for raising health and safety concerns – because of the manner in which he raised those concerns.

Kalac v. Corrosion Service Ltd.

Within one month of commencing work as a member of management, Mr. Kalac began sending long, accusatory emails to the company's health and safety manager, Mr. Asamoah.  Mr. Kalac copied those emails to other senior members of management as well.  The emails became progressively more aggressive and threatening. 

Despite the inappropriate and unprofessional tone of the emails, management acknowledged that Mr. Kalac raised a number of legitimate health and safety issues.  The company held meetings where the concerns and remedial actions were discussed and some put into motion.  But the company's response was not satisfactory to Mr. Kalac.  He continued to send threatening emails and to involve more senior levels of management.

At one point, management held a meeting to endeavor to make peace between Mr. Kalac and Mr. Asamoah.  The meeting went off the rails and ended with Mr. Kalac being asked to leave the room.  Thereafter, Mr. Kalac modified the tone of his emails to other managers, but he continued to send threatening and inappropriate emails to Mr. Asamoah.

One day, Mr. Kalac accused another employee of failing to observe proper lock out and tag out procedures by removing Mr. Kalac's lock.  The employee denied removing the lock but Mr. Kalac persisted, and he became very aggressive and threatening in their encounter, including shaking his finger within one foot of the employee's face.  At the hearing before the Board, Mr. Kalac denied doing so but the Board preferred the employee's version of events. 

Mr. Kalac also denied ever raising his voice and suggested he had a naturally loud voice that others can mistake for shouting.  The Board rejected that suggestion.  Indeed, another member of management, Ms. Zehike, was so concerned about the loud shouting she heard on the floor that she told Mr. Donnelly, the company's VP of Engineering and Technical Services, that Mr. Kalac had "flipped out" and that Mr. Donnelly needed to come down to the floor to diffuse the situation.  Mr. Donnelly testified that his instinct was to call the police but he decided to speak with Mr. Kalac directly.

Mr. Donnelly went to speak with Mr. Kalac.  As the Board found – "He opened the door and asked "what is going on".  [Mr. Kalac] told him "none of your business".  Mr. Donnelly answered "it is my business".  Mr. Donnelly told him he had been approached by an employee who was upset.   [Mr. Kalac] replied that he did not care.  At that point, Mr. Donnelly terminated [Mr. Kalac's]employment."

Following his termination, "someone" commenced sending very threatening and derogatory emails to Mr. Donnelly, Mr. Asamoah and other members of management.  The Board did not hesitate to find those emails were sent by Mr. Kalac.  He also (anonymously) contacted the Ministry of Labour, which attended at the facility and issued over two dozen compliance orders.  This is notable, because it strongly suggests Mr. Kalac's concerns were not unfounded.

The Decision

The Board dismissed Mr. Kalac's complaint. 

Although it was clear that Mr. Kalac was engaged (at least in some instances) in protected activity under the Occupational Health and Safety Act, the manner in which he engaged in that activity was completely unacceptable and inappropriate.  The Board struggled with the inherent conflict between the purposes of the Act and the prohibition against reprisals on one side, and condoning the sort of conduct perpetrated by Mr. Kalac on the other:

"In circumstances like this, it is difficult to distinguish an employer's reaction to the unwelcome exercise of a health and safety right from its reaction to how the safety right is exercised.  The Board must be mindful that the exercise of a right under the Act is, in a sense, an act of insubordination, in that the employee may be acting directly contrary to the employer's desires and perhaps even commands.  The Board must be careful not to discourage the exercise of rights under the Act.  Employees must have the right to act forcefully to ensure health and safety is not compromised.  That being said, the normal workplace rules regarding decorum and respectfulness apply.  There are lines over which employees cannot cross even in the exercise of rights.  Obviously treating employees in a way which itself might be contrary to the Act cannot be condoned."

Lessons for Employers

Employers must be very mindful of the default position in the Occupational Health and Safety Act – that any negative consequence imposed upon an employee who is engaged in a protected right under the Act is presumptively an unlawful reprisal.  Any discipline or termination implemented in those circumstances will go under the legal microscope.  To escape liability for wrongdoing the employer must prove that no part of its decision to impose those consequences (i.e. discipline or termination) was in any way tainted by a desire to punish an employee or dissuade him or others from exercising those rights.

Thankfully, though, this decision confirms that there is a right way to "blow the whistle," and a wrong way.  Employees who engage in harassment, threats and intimidation, even under the guise of raising valid health and safety concerns, will not be shielded from appropriate corrective action.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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