An employee's demand for a bonus and assertion that his
employment relationship would not be "fruitful" and that
his employer could fire him, was the reason for his dismissal, a
court has decided. The dismissal was not retaliation for raising
The employer did environmental assessment and testing. The
employee was a laboratory manager. In December 2009, the employer
told him that he would not get a performance bonus because he did
not meet the criteria. In early January of 2010, the employer told
staff that there was a general slowdown of work.
Early on January 11th, the employee sent an e-mail to the
employer complaining about not getting a bonus. He ended the e-mail
by saying that he did not think the working relationship would be
fruitful in the future, and that if the employer was not satisfied
with his productivity, it could fire him. In the same e-mail, he
complained that a "hood for bulk sample analysis" should
be replaced. Later the same day, the employer did indeed terminate
his employment, referring to his "apparent employment
The employee then filed a complaint with the Workers'
Compensation Board of British Columbia, arguing that he had been
dismissed in retaliation for raising safety issues, including those
mentioned in the e-mail. The Board disagreed, finding that the
employee had been dismissed in direct response to the e-mail, and
that the e-mail primarily related to his bonus; the termination was
unrelated to any occupational health and safety concern.
The employee's appeal to the Workers' Compensation
Appeals Tribunal was dismissed. The WCAT noted that some of the
safety issues raised in the employee's Board complaint were not
in the employee's e-mail. Although the employee had raised
safety concerns earlier – before sending the e-mail –
he had not been able to prove any relationship between his raising
of those concerns and his dismissal.
The employee then tried to attack the WCAT's decision in the
B.C. Supreme Court. The court found that the WCAT's decision
was based upon the evidence. The decision was upheld.
Despite popular perception, safety-retaliation / reprisal cases
are difficult for employees to win in Canada. Where, as in this
case, the employer is able to show that there is another reason for
the termination, courts and tribunals will often be hesitant to
find that the employee was dismissed for raising safety issues.
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The arbitrator's decision covered a number of issues including whether the termination was appropriate and whether the City had breached the grievor's human rights. The following, however, will focus on the privacy issue raised.
In my December 15, 2016 article, Federal Government's Cannabis Report: What does it mean for employers?, I noted the Report's1 suggestion that there was a lack of research to reliably determine when individuals are impaired by cannabis.
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