Employers, tread carefully after complaints
Employers who receive any kind of human rights or other statutory complaint from an employee should be careful that their subsequent treatment of that employee is not retaliatory.
In 2012, Jill and Jack got a job working in the oilfields. They worked for a company that delivered and took away portable toilets. They claimed that when they applied for the job, they were assured that they would always be kept on the same shift. They worked 12-hour shifts, three on days and three night shifts. That would then be followed by six days off. About a year after they started the job, Jill filed a complaint alleging that she was being discriminated against based on her age and gender because she was being denied wage increases that had been received by other male and/or younger employees.
A month later, Jill and Jack went on vacation to Newfoundland and realized they would not be able to get home in time for their first shift after their vacation. Jill called the supervisor and explained that they were delayed and would miss their first shift back. She testified that all he said was “OK, get back safe.” After working their first shift, Jack and Jill were given a letter indicating that they were receiving a verbal warning for their unapproved absence.
Jack and Jill did not react well in this meeting and started to yell a bit. Other employees could hear Jill and she called her boss a “so-called supervisor.” As a result of this bad behaviour in the meeting, Jill and Jack were suspended for three days while the matter was investigated. They ended up being paid for the three days off and were not disciplined. (Some call that a paid vacation, but I am sure it was stressful.)
A week later, Jill got a call indicating that within two weeks her husband and she would be assigned to different shifts and crews. They would no longer have the same days off and would sometimes be working opposite shifts.
Jill filed a complaint under Alberta Human Rights Act claiming that she had suffered from reprisal as a result of having filed the original discrimination complaint. She alleged that the verbal warning, the suspension and the shift change were all motivated by her discrimination complaint.
Jill said that if there had been any suggestion from her boss when she called him to say that they would not be back to work in time that they would be disciplined, she would have flown home. She felt like she had been suckered. The adjudicator did not agree. It was Jill and Jack’s responsibility to make sure they were there for their shift and not anyone else’s. Even though Jill had filed a discrimination complaint, the employer still had a right to manage the workplace and discipline where appropriate.
The same applied to the suspension. Both Jack and Jill had become aggressive in the meeting and insubordinate. Some sort of discipline was appropriate.
Things broke down for the employer when it came to the shift change. Two different members of management tried to rationalize why the shift changes were made and ended up contradicting each other and themselves. Their explanations were vague and unpersuasive. The adjudicator found that on a balance of probabilities, the shift change was motivated, at least in part, by Jill’s discrimination complaint and management’s resulting irritation. Jill was awarded $10,000 in general damages for the injury to her dignity and self respect.
The mixed results of Jill’s case make it clear that an employee complaining about a workplace injustice does not have a free pass that makes them exempt from appropriate discipline. On the other hand, it is also clear that an employer’s treatment of that employee will be scrutinized.