The 'pay them out and move on' playbook for OHS firings just stopped working
Gavin McLean, a Rope Access Technician at IRISNDT Corp., was formally disciplined on June 21, 2024, and fired on July 2, 2024, for raising concerns about asbestos exposure at his worksite. An OHS Officer ordered IRISNDT to pay McLean $1,581.10, the balance of one week's calculated pay after deducting $1,865.10 already paid in lieu of notice.
On April 8, 2026, Alberta Labour Relations Board Vice Chair Gordon Nekolaichuk ruled that calculation was wrong and sent the case back for reconsideration, including whether McLean should get his job back.
McLean filed a complaint with Alberta Occupational Health and Safety on July 8, 2024, alleging he was disciplined and dismissed for reporting asbestos exposure. IRISNDT denied any asbestos work and maintained McLean was let go for his work ethic and a negative attitude toward managers, supervisors, and coworkers.
An OHS Officer found the employer had failed to prove the termination was unrelated to McLean's asbestos complaints. Asbestos was known to exist at the worksite, McLean had flagged it, follow-up medical testing had been arranged, and he was fired shortly after reporting to OHS. That finding was not appealed.
The officer ordered IRISNDT to pay McLean $1,581.10, one week's average pay minus the $1,865.10 already paid in lieu of notice, noting: "One week is the typical award issued in OHS disciplinary action investigations where the involved worker has worked for their employer for a period of time that is (less than two years)."
When a termination payout is not enough
McLean appealed, arguing the officer had converted an OHS violation into a termination notice calculation. The Act prohibits disciplinary action against workers for complying with OHS legislation and permits officers to order reinstatement, back pay for lost wages and benefits, and removal of reprimands from employment records.
The Appeal Body found the officer had relied on OHS's internal procedure directing officers to calculate awards based on length of service, mirroring Employment Standards Code notice periods. For service under two years, that meant one week.
"There is no reasonable manner in which OHS can interpret section 19(8)(c) as permitting a remedy based only on the principles for calculating termination notice," Nekolaichuk wrote. The decision drew a sharp line between two distinct legal concepts. "The remedy for breach of the Act and damages for failure to provide proper notice are fundamentally different things," Nekolaichuk wrote.
A paycheque is not a pardon
The ruling also found the officer had failed to consider reinstatement. The record showed McLean had told OHS he wanted his job back. Nekolaichuk wrote that reinstatement is "an obvious starting point for employees that have been terminated contrary to the Act."
The Appeal Body noted that any income McLean earned elsewhere after dismissal may need to be deducted from the final award, and that the OHS Officer is responsible for requesting that information from the employee.
The board remitted the case for reconsideration and stated: "Calculating the amount payable to an employee inflexibly based on termination notice principles alone simply mimics what employees would generally be owed by employers when their employment is terminated. This is wholly inconsistent with the purpose and text of section 19(8) and in many situations would render the prohibition on disciplinary actions in section 18 of the Act meaningless."
See McLean v IRISNDT Corp. and Occupational Health and Safety, 2026 ABOHSAB 7
