Board Finds Refused Shift Change, Suspension To Be Reprisal

In a recent decision, the Federal Public Sector Labour Relations and Employment Board found that an employer’s actions, which made it more difficult for an employee to participate in a health and safety complaint hearing, were reprisals and in violation of the Canada Labour Code.

The employee had been summonsed to attend as a witness for a two-day hearing before the Occupational Health and Safety Tribunal. Because he worked an afternoon shift, the employee requested a shift change so that he would not have to return to work after the hearing. The employer, Canada Border Services Agency, denied the request and ordered the employee to return to the workplace immediately after the end of the hearing. The employee followed this direction but received a one-day suspension because he did not arrive in the workplace by 5:25PM, as the employer preferred.

The Board concluded that both the refusal to allow the employee a shift change and the suspension were reprisals for the employee’s participation in the health and safety hearing. These actions therefore violated the provisions of the Canada Labour Code which protect employees from being penalized for testifying in a proceeding under the Code.

Specifically, the Board found that the decision to deny the shift change was inconsistent with the employer’s practice for other employees who were allowed shift changes to attend hearings. It also held that the imposition of a 5:25PM return-to-work time was arbitrary and in bad faith as the employee had no control over when the hearing would end. Given the unreasonableness of the employer’s actions in both circumstances, the Board concluded that it was not convinced that the employee’s participation in a health and safety hearing played no part in the employer’s decisions to penalize him.

The complainant and the Public Service Alliance of Canada were represented by Morgan Rowe.