You can’t fire employees in retaliation for whistleblowing or other forms of protected safety activity. That’s a good rule. But here’s the problem. An employee who engages in protected activity might deserve to be fired for some other act or omission. Thus, the employee who shows up for work drunk on Tuesday shouldn’t avoid discipline just because she reported a safety violation on Monday. But how do you show that your decision to fire her was based solely on her Tuesday transgression?

The Law of Retaliation

Two weeks ago, we discussed the four elements of a retaliation offense:

1. An employee engages in protected activity;
2. The company knows of the activity;
3. The company disciplines or takes adverse action against the employee; and
4. There’s a causal connection between the adverse action and the protected activity.

The key is the fourth prong of the test. To prove that discipline against employees who engage in protected activity is legitimate, you must break the chain of causation between the two. That’s not as hard as it might sound. After all, the mere fact that employees who engaged in a form of protected activity were fired, demoted, etc. doesn’t prove that they were retaliated against.

Retaliation Decided Case By Case

There’s no magic formula for determining if discipline was taken because the employee engaged in a protected act. Courts have to determine the issue one case at a time based on factors like the employee’s previous disciplinary record, how the company handled other employees who committed similar violations and how soon after the protected act the employee was disciplined. Here are two cases—both from Canada, illustrating how these factors play out in actual situations:

Cause Shown: A lead hand at a steel plant gets into an argument with his supervisor over safety training of a new worker. “I’m sick of your insubordination,” yells the supervisor. “Then make somebody else the lead hand and let him do the training,” shouts back the lead hand. The next day, the company refuses to give the lead hand his meal ticket; three days after that, it moves his office. The lead hand sues for retaliation. The company claims that denying the lead hand his meal ticket and moving his office had nothing to do with the incident. But the Labour Board disagrees. The fact that the adverse actions took place within four days of the incident establishes an “arguable case” for a causal connection, says the Board [(Re:) Ivaco Rolling Mills, [2002] O.L.R.D. No. 740].

Cause Not Shown: A factory worker tells his foreman that he smells gas. The foreman reassures him that the smell is coming from the lubricant used to clean the machines and poses no danger. The worker becomes upset and curses at the foreman. Later that day, he requests a leave of absence. The supervisor tells him to straighten out his paperwork and resubmit the request.  The worker becomes unruly and threatens to walk off the line. The company suspends him for 30 days. The worker claims that he has been retaliated against for raising a safety concern. The Labour Board disagrees. The worker was suspended because he was insubordinate, not because he complained about the smell of gas, it finds [(Re:) Lear Corp. Canada, [2004] O.L.R.D. No. 4205].

A final caveat: Retaliation need not be an employer’s only motive for the disciplinary action to be illegal. Discipline is also illegal even if retaliation is only one of the reasons and the employer also has legitimate, non-retaliatory motives for punishing the worker.

Conclusion

The bottom line: You shouldn’t deliberately retaliate against workers for exercising their safety rights. But you shouldn’t refrain from imposing the discipline such workers legitimately deserve for committing nonrelated infractions. Just make sure that you can show that the discipline isn’t related to the exercise of the safety right. You can use Questionnaire/Checklist in TOOLS to make a reasonable determination of whether a decision to discipline an employee who’s engaged in some form of protected safety activity is likely to be considered retaliatory.

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