Canadian Safety Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2017 CSR | September 2017 | News Firing following work refusals upheld Attitude and reorganization were reasons for worker's dismissal, not his work refusals and safety complaints: Court BY JEFFREY R. SMITH A NOVA SCOTIA company has won an appeal to overturn a reinstatement order for an em- ployee it said was fired for legiti- mate business reasons, not the employee's safety complaints and work refusals. Herbert Jewers was a mainte- nance mechanic for DSM Nutri- tional Products, a supplier of vi- tamins and nutritional solutions in Mulgrave, N.S. He was hired in December 2012. DSM took safety seriously and took multiple measures to ensure its workplace was as safe as possible. The company gath- ered statistics, studied best prac- tices, compared results with its multi-national operations, and regularly updated safety poli- cies and practices. Jewers and other employees were trained on company safety policies, which included a standard procedure on work refusals. If an employee refused work because of hazard- ous conditions, the employee was to fill out a form and discuss it with her supervisor and the joint occupational health and safety committee. Jewers complained on sev- eral occasions about how DSM's "lock out, tag out, try out" (LO- TOTO) procedures specified in the company's safety policies were applied. These procedures were required by the Nova Sco- tia Occupational Health and Safety Act (OHSA). He also had problems with other safety is- sues, but the LOTOTO issues were his biggest concern, to the point where he invoked his right to refuse work due to dangerous conditions under the OHSA. Jewers refused to work on May 3, 2016, over the LOTOTO procedures and did so again for the same reason the next day. DSM investigated on both oc- casions and each time another employee was assigned to com- plete the work. However, Jewers refused to fill out the necessary forms, didn't want to discuss the issues, and said "It's not my job to fix it." Jewers eventually re- turned to work and, though the issue was resolved by meeting informally, he continued to raise safety concerns. Worker didn't participate in work refusal follow-ups A little more than two months later, on 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 pro- cedure of escalation to the joint occupational health and safety committee. Jewers refused be- cause it wasn't required under the OHSA. DSM's safety manager com- pleted the form as best she could, and eventually the joint commit- tee 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 Ad- vanced 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 de- partment and it need to cut one mechanic. It decided on Jewers 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 Sco- tia Department of Labour and Advanced Education, alleging his dismissal was DSM's retali- ation for raising safety concerns and refusing work — constitut- ing discrimination under the OHSA. A provincial occupational health and safety officer inves- tigated — including interviews with Jewers and several manag- ers and employees at DSM — and found he was fired for his workplace safety efforts. The officer agreed that Jewers' termi- nation was part of a reorganiza- tion within DSM, but found the company changed its plans and moved up its plans to terminate Jewers because of his safety com- plaints. The restructuring dis- cussions began after Jewers' first two work refusals in May 2016. Therefore, the dismissal was not "solely motivated by business reasons," the officer said in or- dering DSM to reinstate Jewers with back wages and benefits. DSM appealed the decision, maintaining that it had started planning the restructuring its maintenance operations in Oc- tober 2015 when a new main- tenance 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. The court found that the dis- missal had an adverse effect on Jewers and was therefore a dis- criminatory action on its face. In addition, although DSM may have been planning the restruc- turing for several months, the timing of Jewers' dismissal was "more than coincidental" com- ing after his three work refus- als. 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. The 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. "The behaviour surrounding the (work refusal) 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." The court also found DSM sufficiently proved its restruc- turing plan was underway sev- eral 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 operat- ing procedure, and respect his colleagues, DSM had enough motivation to decide Jewers was the employee to be let go without factoring in his work refusals, said the court. The court determined that Jewers' termination was "entire- ly and 'solely' because of a legiti- mate business decision and in no way a retaliation for his exercise of rights under the (OHSA)." It granted DSM's appeal and over- turned 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.).

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