A British Columbia delivery company took prohibited action against a worker when it fired her shortly after she complained about safety issues with her delivery vehicle, the Workers’ Compensation Appeal Tribunal has ruled.
The tribunal confirmed a Workers’ Compensation Board decision that found the employer terminated the employee in retaliation for raising concerns about her delivery van, which had multiple safety problems including illuminated warning lights and summer tires in winter conditions.
The worker, who started with the employer in November 2021, was dismissed by text message on Jan. 5, 2022, less than two weeks after reporting the vehicle safety issues to her supervisor on Dec. 24, 2021.
Safety concerns raised with supervisor
The employee reported several problems with her delivery vehicle, including summer tires being used in winter, the vehicle idling at 4,000 revolutions per minute when braking, an illuminated ABS warning light, no cargo light to view parcels, and a phone that was damaged due to weather conditions.
The worker, identified only as C.R. in the ruling, raised these safety matters with her supervisor, Ms. X, and a mechanic. She was told a cargo light would not be provided. When the vehicle was taken to the employer’s shop, diagnostic codes were deleted, but the ABS, vehicle stability and traction control warning lights returned within five minutes of driving.
A Board officer later issued a stop work order for the delivery vehicle until the employer addressed the ABS and traction warning lights.
Employer cited performance issues
The employer argued the termination was solely due to performance deficiencies during the worker’s probationary period. The company maintained that no member of management was aware of any safety-related complaint at the time of termination and that the worker failed to follow formal safety reporting procedures.
Ms. X, described as a warehouse coordinator in a supervisor position, told a Board officer the worker was terminated due to performance issues and arriving late to shifts, not for raising safety concerns. The worker’s manager, Mr. Y, similarly stated the employment was terminated due to unsatisfactory job performance during the probationary period.
Tribunal applies ‘taint principle’
The tribunal applied what’s known as the “taint principle” in prohibited action cases. This principle recognizes there may be multiple reasons behind an employer’s decision to discipline or terminate a worker, but if any part of the reasoning relates to anti-safety attitudes, the employer’s actions will generally be considered prohibited action.
“The taint theory stands for the proposition that safety considerations need not be the only or dominant reason for the employer’s action, but rather, it is sufficient if it is one of the reasons for the employer’s actions under review,” the tribunal noted, citing a previous Appeal Division decision.
The tribunal found the worker had established a prima facie case of prohibited action by demonstrating she suffered a negative employment consequence, engaged in protected safety activity, and there was a causal connection between the two events.
Probationary status no defence
The employer argued the worker’s probationary status justified the termination with minimal reason required. However, the tribunal rejected this argument, stating that prohibited action claims are not proxies for wrongful dismissal claims.
“A probationary employee is in no different position legally from a long-term employee in the context of a prohibited action claim,” the tribunal ruled. “It may be that the bar to terminating a probationary employee is low. However, the taint principle still applies to probationary employees.”
Insufficient evidence from employer
The tribunal found the employer failed to rebut the worker’s prima facie case. While the company pointed to seemingly valid reasons for dismissal, the tribunal noted the employer’s evidence lacked specifics about what actions the worker could take to correct errors or the consequences if errors continued.
The tribunal was critical of the employer’s lack of detailed evidence: “The employer’s evidence contains no particulars expanding on its assertion that the worker was unable to meet the requirements for employment, does not explain what was inadequate about her job performance, or which specific attempts were made to correct her inadequate job performance.”
There was no evidence of progressive discipline preceding the dismissal, and the termination occurred after about six weeks of a three-month probationary period, significantly less than the full probationary term.
Timing supports worker’s case
The close temporal connection between the worker raising safety concerns on Dec. 24, 2021, and her termination on Jan. 5, 2022, supported the finding of prohibited action.
“I find that the worker’s termination is tainted by anti-safety attitude,” the tribunal concluded.
The tribunal emphasized that while the employer provided some evidence of unsatisfactory performance, it failed to provide sufficient explanation for the dismissal to displace any taint of anti-safety attitude.
Appeal denied
The employer, which was self-represented in the appeal, requested the matter proceed in writing. The worker did not participate in the appeal process despite receiving an invitation from the tribunal.
The tribunal denied the employer’s appeal and confirmed the Board’s December 2024 decision that prohibited action had occurred. The ruling noted that the worker’s entitlement to remedy would be addressed in a separate decision.
For more information, see A2402768 (Re), 2025 CanLII 74947 (BC WCAT).
