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Canadian Employment Law Today | 9 Canadian HR Reporter, a Thomson Reuters business 2017 Cases and Trends July 15, Jewers refused to work again over concerns with the LOTOTO procedure. His supervisor asked him to "walk the plan" with him, but Jewers refused. Jewers was asked again to fill out the necessary form to comply with the standard procedure of escalation to the joint occupational health and safety committee. Jewers refused because it wasn't required under the OHSA. DSM's safety manager completed the form as best she could, and eventually the joint committee determined the work was safe and Jewers should return to work. Jewers disagreed and said he was going to report the issue to the occupational health and safety division of the Nova Scotia Department of Labour and Advanced Education. However, he went on vacation for two weeks shortly after that and didn't file a report. When Jewers returned from his vacation on Aug. 1, DSM terminated his employment. DSM indicated it had a plan to restructure the maintenance department and it need to cut one mechanic. It decided on Jewers as the one to be let go since his problems interacting with management and other employees led the company to believe he wasn't a good fit. Jewers immediately filed a complaint with the Nova Scotia Department of Labour and Advanced Education, alleging his dismissal was DSM's retaliation for raising safety concerns and refusing work — constituting discrimination under the OHSA. A provincial occupational health and safety officer investigated — including interviews with Jewers and several managers and employees at DSM — and found he was fired for his workplace safety efforts. e officer agreed that Jewers' termination was part of a reorganization within DSM, but found the company changed its plans and moved up its plans to terminate Jewers because of his safety complaints. e restructuring discussions began after Jewers' first two work refusals in May 2016. erefore, the dismissal was not "solely motivated by business reasons," the officer said in ordering DSM to reinstate Jewers with back wages and benefits. DSM appealed the decision, maintaining that it had started planning the restructuring of its maintenance operations in October 2015 when a new maintenance supervisor decided to take a preventative approach rather than responding to issues as they came up. Several months of planning led to a structure in June 2016 that required letting two maintenance mechanics go, including Jewers, the company said. DSM also argued that Jewers failed to follow its policies and requirements under the OHSA when he didn't escalate his safety concerns by filling out the forms and discussing them with the joint occupational health and safety committee. e court found that the dismissal had an adverse effect on Jewers and was therefore a discriminatory action on the surface. In addition, though DSM may have been planning the restructuring for several months, the timing of Jewers' dismissal was "more than coincidental" coming after his three work refusals. As a result, the timing of the dismissal was related to the safety complaints, leaving the onus on DSM to prove Jewers' employment was terminated for business reasons and not his attempts to comply with the OHSA, the court said. e court heard evidence that Jewers' refusal to participate in the proper procedure following his safety complaints and work refusals were part of an overall issue with his attitude. He had other disputes over safety issues and overstepped his boundaries at times, leading to tension with management. As a result, the court found that while Jewers' work refusals played a role in his termination's timing, it was the demonstration of his attitude in those refusals rather than the work refusals themselves that factored into his termination. "e behaviour surrounding the (work refusals) was the final straw, convincing DSM that they couldn't work with Mr. Jewers," said the court. "So, the timing is the same, but the reason for the termination is not the (work refusals), but the behaviour of Mr. Jewers, demonstrated by his reactions to the (work refusal) in this last incident. One thing follows the other, but the latter wasn't caused by the former." e court also found DSM sufficiently proved its restructuring plan was underway several months before Jewers' work refusals and the company had legitimate business reasons for eliminating his position. Given his failure to get along with people, follow standard operating procedure, and respect his colleagues, DSM had enough motivation to dismiss Jewers without his work refusals, said the court. e court determined that Jewers' termination was "entirely and 'solely' because of a legitimate business decision and in no way a retaliation for his exercise of rights under the (OHSA)." It granted DSM's appeal and overturned the reinstatement order from the occupational health and safety officer. For more information see: • DSM Nutritional Products Canada Inc. and Jewers, Re, 2017 CarswellNS 503 (N.S. Lab. Bd.). Employee's attitude made him candidate for cuts Termination must be unrelated to the disability « from WORKER'S FIRING on page 3 seeking punitive damages and aggravated damages, based on the principles outlined by the Supreme Court of Canada in Wallace v. United Grain Growers Ltd., Honda Cana- da Inc. v. Keays, and more recently, Bhasin v. Hrynew. To avoid the risk of a human rights com- plaint or court action, it will be important for an employer considering the dismissal of an employee on disability leave to ensure it will be able to prove that the termination deci- sion was not connected to the employee's disability. e employer should be able to point to objective factors unrelated to the disability that led to its decision to select the employee for termination. For more information see: Morris v. British Columbia Railway, 2003 CarswellBC 2002 (B.C. Human Rights Trib.). McKenna v. Atlas Anchor Systems (B.C.) Ltd., 2011 CarswellBC 3641 (B.C. Human Rights Trib.). Wallace v. United Grain Growers Ltd., 1997 CarswellMan 455 (S.C.C.). Keays v. Honda Canada Inc., 2008 CarswellOnt 3743 (S.C.C.). Bhasin v. Hrynew, 2014 CarswellAlta 2046 (S.C.C.). WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as handling risky terminations, drugs and alcohol in the workplace, employee off-duty conduct, and workplace investigations. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. « from ASK AN EXPERT on page 2

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