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Men without hardhats: where freedom of religion loses out to workplace safety

Freedom of religion and the duty to accommodate within the workplace context is a highly important issue in Québec given the discrimination provisions of the Canadian Charter of Rights and Freedoms as well as the Québec Charter of Human Rights and Freedoms. Employers and employees must work together to attempt to reconcile the right to freedom of religion of employees with the legal obligations imposed on employers under occupational health and safety laws. Quebec courts have been frequently called to rule on this particular subject over the years.

Most recently, in the case of Singh et al. v. Montréal Gateways Terminals et al., the Superior Court of Québec was called to rule on the issue as to whether individuals of the Sikh religion could be exempted from a work policy implemented by the Montréal Gateways Terminals (“MGT”), Empire Stevedoring Co. Ltd. and Termont Terminals Inc. (collectively the “Defendant Terminals”). This policy required all workers to wear a hardhat when circulating outside on the premises of the terminals. The Plaintiffs, truck drivers whose work included transporting containers, claimed that their religious belief prohibited them from wearing such hardhats. Accordingly, they maintained that this policy was discriminatory and violated their right to freedom of religion. Upon adopting the policy, MGT tried to accommodate the Plaintiffs by modifying its container loading procedures which enabled them to stay in their vehicles and, hence, avoid wearing hardhats. However, these measures were rejected by the Plaintiffs as they claimed that they involved significant disadvantages.

This issue was decided upon on September 21st 2016 by Mr. Justice Prévost, J.C.S., who ruled that although MGT’s policy was prima facie discriminatory and violated the right to freedom of religion as regards to the Plaintiffs, it was nevertheless justified given the imperative objectives of such policy.

In reaching his decision, Mr. Justice Prévost, J.C.S., began his analysis by examining the principles with respect to discrimination enshrined in the Canadian Charter of Rights and Freedoms and the Québec Charter of Human Rights and Freedoms. To that effect, this decision is of significant importance as it is a rare case of transposition of the protections granted under the Québec Charter of Human Rights and Freedoms to a federally-regulated workplace. He established that the policy was in fact discriminatory since the Plaintiffs could not meet the requirement of wearing a hardhat without violating their religious beliefs and, thus, could not work at the terminals operated by MGT. He also confirmed that the policy violated the Plaintiffs’ right to freedom of religion as their belief was sincerely held and the challenged policy interfered with the Plaintiffs’ ability to act in accordance with their beliefs in a manner that was more than trivial or insubstantial.

Nonetheless, Mr. Justice Prévost, J.C.S., held that the policy implemented by the Defendant Terminals was justified as it was adopted in order to ensure the safety of workers circulating or working in the terminals operated by the Defendant Terminals. There was in fact a substantial risk of head injuries for truck drivers when they were required to circulate outside their vehicle on the premises of the terminals. In rendering his decision, Mr. Justice Prévost, J.C.S., also underlined the importance of health and safety at work within the Québec society.

Empire Stevedoring Co. Ltd., Termont Terminals Inc. and the Montreal Port Authority were represented by Vikki-Ann Flansberry from Dentons Montreal.

Singh et al. v. Montréal Gateways Terminals et al. 2016 QCCS 4521

Click on the link to have access to the decision (available in French only)

Men without hardhats: where freedom of religion loses out to workplace safety

Worker entitled to asbestos records for government building he worked in, but not list of employees in building

A worker was entitled to asbestos records for the government building he worked in. However, he was not entitled to a list of government employees who worked in the building and therefore who may have been exposed to asbestos, a B.C. freedom of information adjudicator has held.

The worker asked for and was given records in relation to air quality and discovery of asbestos in two government buildings.  He was denied access to an email containing a list of government employees who worked in the building.

The employee appealed. The adjudicator refused access to the employee list. She decided that the government had gathered the names of employees for the purposes of possible future workplace health and safety claims.  As such, the list related to employees’ “employment history” and this should not be disclosed. Also, because the context in which the list was created indicates that the employees in the building may have been exposed to asbestos, the list would reveal information about “medical history”. That was another reason why, under the freedom of information legislation, the list should not be disclosed.

While the case deals with government-owned buildings, the decision perhaps demonstrates some workers’ anxiety about asbestos in buildings and their perceptions regarding risks to their health.

British Columbia (Finance) (Re), 2016 BCIPC 46 (CanLII)

Worker entitled to asbestos records for government building he worked in, but not list of employees in building

Safety topic was emphasized, not “buried in hundreds of power point slides”: employer establishes due diligence, not guilty in workplace fatality

A Saskatchewan employer has been found not guilty of six occupational health and safety charges after a worker died of suffocation when he became engulfed in a grain receiving pit.  The employer’s extensive safety program had emphasized, not buried, the relevant training.

The charges alleged that the employer failed to properly train and instruct the employee regarding safety.

The employer showed that the employee had received computer based training on various topics including confined space safety. He had completed 12 such training modules, 4 of which dealt with the “dangers of engulfment”. At the end of each module, he took a test on which he received a grade of at least 80% which was the pass rate. He also took 5 hands-on training courses including one relating to safe-work permits.

The training materials were replete with references to the dangers of entering a confined space such as a receiving pit. The materials were extensive.  The court rejected the prosecutor’s argument that the confined space training was “buried in dozens of [computer based training modules] in hundreds of power point slides” and therefore would have been “lost” on the worker.  Instead, the court found that the “mass of material emphasized the dangers, and the importance of following safety procedures, rather than burying them.”

Also, there was not a “culture of paying lip service” to safety that would have “detracted” from his safety training.

In this case, the worker was not directed to do anything involving a receiving pit. Instead, he had been given an “innocuous” task which he had also done an hour earlier – to simply take a flashlight and look into the pit to see whether it was empty or there was grain in it.  There was no reason for the employer to think that he would enter the receiving pit. In any event, the employee was properly trained for the work that he was directed to do. The employer had successfully shown due diligence.  All six charges were dismissed.

R v Viterra Inc., 2016 SKQB 269 (CanLII)

Safety topic was emphasized, not “buried in hundreds of power point slides”: employer establishes due diligence, not guilty in workplace fatality

“Competent supervisor” obligation relates to competence in safety, not in performance management: OLRB dismisses OHSA retaliation complaint

A laid-off worker’s safety-retaliation complaint under the Occupational Health and Safety Act has been dismissed because it was really a complaint about management’s assessment of his performance – not about safety.

The worker complained that after management “split supervision” of his department between two supervisors, the supervisors were not “competent” as they did not understand the workplace and work requirements, leading to the worker receiving unfavorable performance reviews.  He claimed that this violated the employer’s duty under the OHSA to appoint a competent supervisor.  He also said, in his safety-reprisal complaint to the Ontario Labour Relations Board, that he had been laid off in retaliation for raising this issue.

The OLRB noted that under the OHSA, “competence” of a supervisor is to be considered in the context of the health and safety purposes of the OHSA.  It does not include concerns about the expertise or experience of supervisors to give directions or evaluate work.

Here, the worker’s complaints, which had continued for several years before he had been laid off, were about his frustration with management’s perception of his performance and their failure to change his job classification.  His complaints were not about safety.  Therefore, he had not been retaliated against under the OHSA and his OLRB proceeding was dismissed.  The worker later asked the OLRB to reconsider its decision, and that request was also dismissed.

Jean (John) Dionne v MacLean Engineering, 2016 CanLII 45959 (ON LRB)

“Competent supervisor” obligation relates to competence in safety, not in performance management: OLRB dismisses OHSA retaliation complaint

Persistent “sexual annoyance” of five female coworkers gets employee fired for cause, despite late reporting of incidents

A shelter support worker’s persistent pattern of sexual comments to five female coworkers justified his dismissal for cause, despite the coworkers’ failure to promptly report the incidents, a labour arbitrator has decided.

The coworkers complained that he had persistently commented about his sexual exploits, his body parts, the coworkers’ body parts, and how he wanted to have sex with certain coworkers and clients.  They also complained that he had made obscene sexual gestures.

The employee claimed that all of the allegations were false and that the five female coworkers had conspired to get him fired because they were upset about him winning a grievance that awarded him a certain job.  He noted that there had never been “hint” of him engaging in such conduct in his 25 years as a support worker and 7 years with this employer. He also noted that none of the coworkers reported the incidents at the time they allegedly happened.

The arbitrator stated that if there had been only one complainant, the case would have been different.  Here, however, there were five complainants.  Absent any evidence that the coworkers conspired to perjure themselves to get the employee fired, the arbitrator could not find that they had.

With respect to the coworkers’ failure to report the incidents promptly, the arbitrator stated:

“There were shortcomings in the evidence of the five female co-workers who testified against Mr. Elmi.  On the face, the most troubling was the failure of any of them to have reported Mr. Elmi’s alleged misconduct at the time.  However, given that it was sexual arrogance and not sexual coercion, given that none of these witnesses were aware at the time that the others were being subjected to the same abuse, given that there were no witnesses and given that there was no thought that Mr. Elmi would be terminated such that even if reported the female might again work unsupervised and alone with Mr. Elmi, I do not find it surprising that the alleged misconduct was not reported at the time.  In the final analysis I have been persuaded by the consistent and unshaken central assertion of these witnesses; that is, that Mr. Elmi engaged in persistent and particularly offensive sexual annoyance. When all the evidence is considered and weighed, I accept the central assertion of the five female bargaining unit co-workers who testified against Mr. Elmi. Accordingly, I reject Mr. Elmi’s denials and hereby find that Mr. Elmi engaged in persistent, pervasive, unwelcome and extremely offensive sexual annoyance in the workplace.”

As such, the arbitrator decided that the employer had just cause for dismissal. Since the employee was not remorseful, and had made a “blanket denial” of all of the allegations, it was not appropriate to reinstate him and give him another chance.

Ottawa (City) v Ottawa-Carleton Public Employees’ Union, Local 503, 2016 CanLII 59377 (ON LA)

Persistent “sexual annoyance” of five female coworkers gets employee fired for cause, despite late reporting of incidents

Supervisor’s OHSA conviction upheld on appeal: prosecutor not required to prove what “hazard” caused concrete worker’s death

A supervisor’s Occupational Health and Safety Act conviction of failing to sufficiently and competently supervise work has been upheld on appeal, after a concrete worker died.

The supervisor operated and managed a concrete business.  He was hired to pour a concrete floor in a newly constructed shop.  They used a gas heater to heat the area.  The supervisor became aware that the gas supply hose to the heater produced an electric shock when touched. He warned workers but did not fix the problem.

The worker, who had been trowelling concrete, was later found lying on the floor near the gas heater.  He was later pronounced dead.  The treating doctor observed two red areas on his skin, which were consistent with electrocution.

The prosecutor’s theory at trial was that the worker died from electrocution.  The supervisor suggested that the death was from carbon monoxide poisoning from the gas heater so that the charge, based on electrocution, should be dismissed. Both the trial judge and Court of Appeal disagreed, holding that the contention that the worker died from carbon monoxide poisoning was speculative and not supported by the evidence.

The Court of Appeal further noted that the charge did not specify what “hazard” caused the death, and accordingly the prosecutor did not need to prove the cause.  As such, the supervisor was properly convicted of the “failure to supervise” charge under the OHSA.

R v Farnham, 2016 SKCA 111 (CanLII)

Supervisor’s OHSA conviction upheld on appeal: prosecutor not required to prove what “hazard” caused concrete worker’s death

High school machine shop teacher loses work refusal case

A machine shop teacher’s work refusal was not justified, an appeals tribunal has decided, given that the teacher had the ability to manage the class environment to ensure safety.

The teacher refused to teach the class if there were more than 16 students present, stating that a larger class size would put his safety at risk.

The teacher argued that adolescents were prone to act in an unpredictable manner when working with machinery, risking creating “projectiles and other hazardous situations”.

In dismissing the teacher’s appeal from the decision of a health and safety officer, the tribunal noted that the collective agreement set the maximum class size at 29 and that the New Brunswick Department of Education recommended a class size of 18 to 22. As such, the teacher’s personal limit of 16 was not justified.

Most importantly, the teacher had the ability to provide less hands-on teaching and more class time, which would help manage safety in the classroom.

The tribunal stated:

“While it is obvious that the teaching experience will suffer, it was apparent from the appellant’s testimony that less hands-on experience and more classroom time will ensure the safety of the students. While students may not like less hands-on training, the issue before me concerns whether the January 8, 2016, decision should be overturned.”

As such, the teacher’s appeal was dismissed.  His work refusal was not justified under the New Brunswick Occupational Health and Safety Act.

20168017 (Re), 2016 CanLII 57012 (NB WCAT)

High school machine shop teacher loses work refusal case

OHSA conviction, $48,000 fine upheld on appeal: “blocking” of machine required physical block

An Ontario Appeal judge has upheld an employer’s conviction under the Occupational Health and Safety Act for failure to “block” a machine, after the trial justice held that “blocking” required a physical block, not simply shutting off the hydraulic power.

The Ontario Ministry of Labour had charged the company with failing to ensure that a “part of a machine, transmission machinery, device or thing shall be cleaned, oiled, adjusted, repaired or have maintenance work performed on it only when . . . any part that has been stopped and that may subsequently move and endanger a worker has been blocked to prevent its movement”, contrary to section 75(b) of the Industrial Establishments regulation under the OHSA.

A maintenance worker with the company, which operated a sawmill, suffered crushing injuries to his arm as he reached in between the “side heads” of a saw while performing maintenance.  Another employee, not knowing that the maintenance worker had gone into the area between the side heads, had used the control box for the machine to close the side heads.

The machine had been shut down for maintenance and its electrical system had been locked out.  However, the maintenance worker left the hydraulics on, which was required in order to move the side heads for maintenance.

The appeal court held that the trial justice had not erred in deciding that “blocking” required a physical block be used to restrain movement of the side heads.  It was reasonable to interpret “blocking” to require that a physical block, a “large solid piece of hard material” be used.

The conviction was therefore upheld. The appeal judge also held that the $48,000 fine was reasonable, despite the fact that the company had only 25 workers and no previous convictions under the OHSA.

Ontario (Ministry of Labour) v. McKenzie Lumber Inc., 2016 ONCJ 533 (CanLII)

 

OHSA conviction, $48,000 fine upheld on appeal: “blocking” of machine required physical block

“Reputable and responsible” owner / operator guilty of OHSA charge after drill rig collapse at York University

After a dramatic and tragic incident in which a large drill rig fell over at York University, fatally injuring a backhoe operator and badly injuring an excavator operator, the company that owned and operated the rig has been found guilty of an offense under the Occupational Health and Safety Act.

The court described the company as “reputable and responsible”, showing that even safety-oriented companies can be found guilty of OHSA offences if they do not have rigorous processes in place to ensure safety and avoid accidents.

The accident took place in October 2011 on the TTC subway extension project at the university.

The court held that the company had failed to ensure that the soil base under the drill rig was capable of safely supporting the weight of the large drill rig.

The Ministry of Labour called a “world-renowned” engineer, who was an expert in soil conditions, to testify.  He testified that the most likely reason that the drill rig fell over was that the pressure that the drill rig exerted on the ground exceeded the weight-bearing capacity of the ground.

The court further found that there was no evidence that the company took any steps to confirm that the platform on which the drill rig was operated could support the drill rig in accordance with its specifications for stability, and no record of the company confirming that the ground had been prepared sufficiently to support the rig.

The company has not yet been sentenced for the offence, so the fine is not yet known.

Ontario (Ministry of Labour) v. Advanced Construction Techniques Ltd., 2016 ONCJ 482 (CanLII)

“Reputable and responsible” owner / operator guilty of OHSA charge after drill rig collapse at York University

Post-dismissal doctor’s report was relevant: disabled employee reinstated for further consideration of possible accommodation, after evidence that medical condition improved

An employee whose medical condition had improved both before and after termination has been reinstated for further consideration of possible accommodations, after an arbitrator relied on a doctor’s assessment done after dismissal.

The employee was 67 years old and had been away from work for 14 months when dismissed after 18 years of employment.  He had undergone surgery, 14 months before his dismissal, for buildup of plaque in his arteries.  Cognitive deficits were noted during his recovery period.  About 11 months before his dismissal, a doctor who worked for the employer’s contracted health services provider, found that he had “slow speech, slow processing, slow thinking”.  Two months later another doctor found that, in contrast with the previous doctor’s assessment, the employee had “continued to improve both physically and cognitively”.  Two months later, a neuropsychological assessment concluded that it was “unlikely that [the employee] will be able to safely return to work” in his position.

Two weeks before the employee’s dismissal, the employee’s family doctor provided a report recommending that the employee be provided with “a gradual return to work” because he was not “totally disabled from all work duties”.  The doctor asked that the employee be accommodated in a sedentary position.

The arbitrator admitted, into evidence, another neuropsychological assessment, by a different specialist, conducted a few months after the employee’s termination, which found that the employee had recovered and did not have “Vascular Cognitive Impairment” which the previous neuropsychological assessment had presumed.  The new assessment, although conducted after termination, was relevant because it was consistent with pre-termination assessments which had shown some improvement.  The employee’s condition at the time of termination was unclear until the post-termination assessment report was received.

The arbitrator therefore determined that the employee’s condition had improved at the time of termination and it was not reasonable to conclude that there was no reasonable prospect of the employee being able to regularly attend work. The arbitrator reinstated the employee for the purposes of having his condition considered by a “Joint Medical Placement Committee” which was provided for in a letter of understanding between the employer and the union.

In a subsequent decision handed down after the Joint Medical Placement Committee considered the employee’s situation, the arbitrator decided that it would cause undue hardship to put the employee back into the workplace.  In particular, an Occupational Therapist had concluded that the employee:

“is not suited for safety sensitive work. In my opinion, Mr. Voykin should not be placed in any jobs that require attention to detail, correct and quick responses to information and/or dividing/alternating attention between two or more tasks.

Adaptations or accommodations would not allow him to compensate for these difficulties….”

Further, the union had not identified any jobs in which the employee could be appropriately accommodated.  As a result, the employer had satisfied its duty to accommodate. The employer was therefore justified in ending the employee’s employment.

Rio Tinto Alcan Inc. v Unifor, Local No. 2301, 2015 CanLII 100020 (BC LA)

Post-dismissal doctor’s report was relevant: disabled employee reinstated for further consideration of possible accommodation, after evidence that medical condition improved

Bill 132 Update: MOL Releases Code of Practice to Help Employers Comply with OHSA’s Harassment Provisions

Further to our series of posts on Ontario’s new Sexual Violence and Harassment Legislation, which amends the Occupational Health and Safety Act, the Ontario Ministry of Labour has recently issued a Code of Practice to Address Workplace Harassment under Ontario’s Occupational Health and Safety Act. The Code of Practice deals with the OHSA’s new Workplace Harassment provisions, which come into force on September 8, 2016. The Code of Practice is effective as of that same date.

Importantly, although employers are not legally required to comply with the Code of Practice, those who do will be considered by the Ministry to have complied with the harassment provisions of the OHSA. As such, the Code of Practice is a practical tool that employers can use to ensure compliance.

The Code of Practice is divided into four Parts, each of which is further subdivided into a “General Information” section, which provides guidance on the interpretation of the OHSA’s Workplace Harassment provisions, and a “Practice” section, which details requirements that employers may follow to comply with the OHSA.

The Code of Practice’s Preface indicates that following its requirements is “just one way in which employers can meet the legal requirements regarding workplace harassment” and a failure to comply with all or part of the Code of Practice may not be a breach of the OHSA. However, the Code of Practice also states that, while employers may choose to adhere to one or all of the Code of Practice’s Parts, if an employer does adhere to a Part, it must adhere to all of the Practice requirements under that Part in order to be deemed in compliance with the related Workplace Harassment provision in the OHSA.

The Code of Practice’s “General Information” sections provide guidance on the interpretation of the OHSA’s Workplace Harassment provisions, as follows:

  • Part I: Workplace Harassment Policy – This section outlines the contents of a Workplace Harassment Policy and explains that employers may choose to prepare a separate Workplace Harassment Policy or combine it with their workplace violence, occupational health and safety and/or anti-discrimination and anti-harassment policies. A template Workplace Harassment Policy is included in the Code of Practice (Sample Workplace Harassment Policy)
  • Part II: Workplace Harassment Program – This section considers reporting mechanisms for incidents and complaints of Workplace Harassment. In particular, it clarifies that a person who receives a complaint of Workplace Harassment should not be under the alleged harasser’s direct control. Further, in instances where the worker’s employer or supervisor is the alleged harasser, an alternate person who can “objectively address the complaint” must be designated to receive reports of Workplace Harassment, such as an employer’s board of directors and/or a consultant. Further, the Workplace Harassment program should set out whether this person would only receive the complaint, or whether this person would be expected to carry out an investigation.

    This section also considers the consequences of incidents of Workplace Harassment. In incidents arising from individuals who are not the employer’s workers, the section suggests that employers could either modify or refuse its services to such people. Consequences for workers could include: apologies, education, counseling, shift changes, reprimands, suspension, job transfer, termination or, in instances where workplace harassment is prevalent or commonplace, training for everyone in the workplace.

  •  Part III: Employer’s Duties Concerning Workplace Harassment – This section relates to investigations into Workplace Harassment and provides that: an “appropriate investigation” must be “objective”; the investigator must not be “directly involved in the incident or complaint” or “under the direct control of the alleged harasser”; and the investigator should have knowledge of how to conduct an investigation appropriate in the circumstances. The parties to the complaint should be updated periodically on the status of the investigation. The Code of Practice includes a sample investigation template, which can be found here: Sample Investigation Template
  • Part IV: Providing Information and Instruction on a Workplace Harassment Policy and Program – This section outlines the scope of the “Information and Instruction” that an employer must provide to its workers under the OHSA. Employers provide information and instruction on “what conduct is considered workplace harassment” and supervisors need to receive specific instruction on “how to recognize and handle a workplace harassment incident”. The employer should keep records of the information and instruction provided to its workers for at least one year.

Notably, the “Practice” sections list additional requirements that are not contemplated by the OHSA’s new Workplace Harassment provisions, including, but not limited to:

  •  Indicating, in a Workplace Harassment Program, when an external person will be retained to conduct a workplace harassment investigation (for example, but not limited to, when the alleged harasser is a president, owner, high-level management or senior executive);
  • A timeframe of 90 calendar days or less to complete an appropriate investigation, unless there are extenuating circumstances warranting a longer investigation (e.g. more than five witnesses or key witnesses unavailable due to illness);
  • Listing seven steps to an investigation that an employer must complete, at a minimum, including giving the alleged harasser(s) the opportunity to respond to allegations raised and, in some circumstances, providing the worker who has experienced Workplace Harassment with a reasonable opportunity to reply; and
  • That corrective action, if any, that is or will be taken as a result of the investigation, must be communicated in writing within 10 calendar days of the investigation being concluded.

The Code of Practice attaches a Sample Workplace Harassment Program, which provides guidance on addressing the Code of Practice’s requirements.

The Ministry of Labour indicates that the Code of Practice is “designed to help employers meet their obligations” with respect to the OHSA’s Workplace Harassment provisions. As such, it provides insight on the Ministry of Labour’s expectations for developing, implementing and maintaining Workplace Harassment Policies and Programs. While employers do not need to comply with the Code of Practice’s requirements to ensure compliance with the OHSA, a consideration of the information and requirements set out in the Code of Practice will help employers address Workplace Harassment in a manner that is consistent with the Act and the Ministry’s expectations. The full text of the Code of Practice can be found here.

Bill 132 Update: MOL Releases Code of Practice to Help Employers Comply with OHSA’s Harassment Provisions

Sidewalk rage? Employee convicted of dangerous driving under Criminal Code after “trying to scare” his boss by driving towards him

An employee has been convicted of dangerous operation of a motor vehicle after he drove towards his boss three times, “trying to scare him”.

The employee worked as a labourer in construction.  His relationship deteriorated with his boss, leading to a physical altercation between them.  After the altercation, the boss was standing on the sidewalk when the employee circled at least once, and perhaps two or three times, and attempted to strike or at least come very close to his boss with his car.  He was driving quickly at a speed that appeared dangerous to other witnesses who observed the incident.

The court found that although the employee was “operating under some stress and confusion”, he was not merely trying to escape his boss.  The employee’s assertion that he had no intention of hitting his boss was not a defence.  In his statement to the police, the employee admitted that when he drove towards his boss, he was trying to scare him.  That admission was enough to show mens rea, the “guilty mind” requirement for a criminal charge.

The court decided that driving on the sidewalk at some speed to try to scare someone was a “marked departure from the standard of care that a reasonable person would observe”.  A reasonable person would have been aware of the risk.  The employee actually admitted at trial that driving on the sidewalk “was a mistake”.

The employee was therefore guilty of the criminal offence of dangerous driving.

R. v. Draid, 2016 BCSC 423 (CanLII)

Sidewalk rage? Employee convicted of dangerous driving under Criminal Code after “trying to scare” his boss by driving towards him

Employer loses wrongful dismissal case after court finds safety rules unclear

An employer has lost a wrongful dismissal case after a court found that its safety rules, which it alleged the employee violated, were unclear and not clearly-communicated.

The employee worked at a solid waste facility in the Yukon.  The employer fired the employee and attempted to prove “just cause” on the basis of absenteeism, poor working relationships, use of company cell phone for personal calls, and safety violations.

With respect to safety, the employer claimed that the employee did not like to wear her safety vest and steel-toed boots, despite it being a job requirement, and that the employee was constantly reminded to wear her hard hat.  The employee acknowledged that she knew that if she did not comply with the safety rules, she would be fired; however, she said that the rules were unclear and she had asked that they be written down.

The court decided that the hard hat requirement was not clearly set out by the employer, and was not included in the employer’s “Employee Guidelines” document.  The court concluded:

“I find that the Society did not take the necessary steps to ensure that there was a clear and unequivocal set of rules, guidelines and/or policies that made it clear what equipment was to be worn at what locations and at what times.  I find that, to the extent that there was some verbal direction provided, this direction was not entirely clear and cannot be relied upon as establishing a standard that Ms. Goncharova can then be viewed as having breached.

The power to establish clear and unequivocal standards and requirements lay with the Society.  It simply was not done.”

The employer also failed to prove that the absenteeism, relationship issues and cell phone use justified the dismissal.

This case illustrates the importance of clear communication of safety rules where the employer wishes to discipline or dismiss the employee for a violation of those rules.

Goncharova v. Marsh Lake Waste Society, 2015 YKSM 4 (CanLII)

Employer loses wrongful dismissal case after court finds safety rules unclear

Despite employee’s concerns with speed, quality and outcome of harassment investigation, no reprisal under OHSA

Even though an employer’s harassment investigation was allegedly slow, inadequate and had a questionable outcome, the employee had not suffered a “reprisal” under the Ontario Occupational Health and Safety Act, the Ontario Labour Relations Board has held.

The Employee alleged that another employee had harassed her.  She filed a harassment complaint with the employer. The employer investigated and actually found that her complaint was substantiated.

The employee was still unhappy. She filed a reprisal complaint with the OLRB, alleging that the investigation took too long and was of poor quality, and that the outcome was not appropriate (she said that the employer has not done enough to protect her from the harasser – she had asked the employer to guarantee that she would never work with him again – and she wanted more serious discipline imposed on the harasser).

The OLRB decided that the employer’s actions, if true, did not meet the definition of reprisal under the OHSA.  The employee did not claim that she was disciplined, dismissed or threatened for claiming the protection of the OHSA.  Nor did she plead any facts that could lead the OLRB to conclude that the employer has penalized, intimidated or coerced her for seeking to enforce the OHSA.

The OLRB stated:

While Ms. Pouli is not happy with the conduct of the investigation and, to a certain extent, its outcome, her dissatisfaction with the process and the discipline (or lack thereof) ultimately imposed upon the Co-worker do not constitute reprisals under the Act . . . [T]he instant case can be summarized as follows: The Employer has a Policy pursuant to which Ms. Pouli filed a Complaint, which was investigated but Ms. Pouli is not happy with the investigatory process and certain aspects of the results.  This set of facts simply does not engage section 50 of the Act.”

This case illustrates the principle that under the OHSA, most harassment issues are to be dealt with and resolved internally within the employer’s organization.  Given the structure of the harassment provisions of the OHSA, in only exceptional cases will the OLRB or the Ontario Ministry of Labour get involved with the conduct or even the outcome of harassment investigations.

Camille Pouli v Ministry of Community Safety and Correctional Services, 2016 CanLII 48460 (ON LRB)

Despite employee’s concerns with speed, quality and outcome of harassment investigation, no reprisal under OHSA

Bartender, fired for smoking marijuana at work, loses human rights complaint

A B.C. bartender has lost his human rights complaint after he was dismissed for smoking marijuana on shift.

The bartender also served as assistant manager of the restaurant.  The employer had a policy that prohibited consumption of drugs or alcohol while on shift.  The policy was meant to ensure that employees – including bartenders, who monitored customers’ consumption of alcohol – did not themselves become intoxicated.

The bartender’s job was described, in the decision, as “serving alcohol to customers, monitoring their consumption of alcohol, their demeanor and their conduct to ensure that the employer abides by its legal obligations under the Liquor Control and Distribution Act, the Occupational Health and Safety Regulations, the Occupiers’ Liability Act, and its common law duty of care to ensure that its employees and customers do not create harm to themselves or others.”

After being caught smoking marijuana, the employee claimed that he used it for a a”chronic pain condition”.  He filed a complaint with the B.C. Human Rights Tribunal against his employer, the executive chef and general manager, and the restaurant owners, claiming that his dismissal was discriminatory because of his “disability”.

The B.C. Human Rights Tribunal concluded that there was no evidence that the employer was aware that the bartender’s marijuana use was related to physical disability.  Therefore, the employee had not proven that there was a connection between his disability and his termination.  As such, his human rights complaint was dismissed.

Burton v. Tugboat Annie’s Pub and others, 2016 BCHRT 78 (CanLII)

Bartender, fired for smoking marijuana at work, loses human rights complaint

GHS Update: Government of Canada introduces new regulations for protection for workers handling hazardous materials

The Government of Canada has announced that new Occupational Health and Safety regulations under the Canada Labour Code, which are intended to better protect federally regulated workers who use, handle and store hazardous products in the workplace, will be published in Part II of the Canada Gazette.

As we have written about in our previous blog posts, these amendments are part of a national and international initiative to implement the “Globally Harmonized System of Classification and Labeling of Chemicals”, known as “GHS”, which is a worldwide standard of communicating the hazards associated with workplace hazardous chemicals. The Government notes that, in addition to Canada, the United States, Australia, the European Union, and China, among others, are already in the process of implementing the GHS.  Applying an international standard for workplace hazardous chemicals will streamline hazard information among suppliers from many of Canada’s trading partners, which will, among other things, facilitate trade and reduce compliance costs associated with shipment of products across borders.

The Government also notes that the creation of an international standard for the classification and labelling of hazardous workplace chemicals will serve to increase the health and safety of workers in Canada while also improving their overall health and safety of workers by providing clear and consistent information on how to safely use hazardous materials in the workplace.

The amendments are contained in the following 5 Occupational Health and Safety regulations under Part II of the Canada Labour Code:

For the Government of Canada’s announcement, click here.

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GHS Update: Government of Canada introduces new regulations for protection for workers handling hazardous materials

Unauthorized supervisor decided to “solve the problem himself”, caused accident – OHSA charges against company dismissed

An employer has beat occupational health and safety charges laid after its supervisor caused an explosion when he defied instructions and took it upon himself to use a torch to thaw ice that had accumulated in a culvert.

In a production meeting, the supervisor raised the issue of the ice accumulation in a culvert under the plant service road. He said he was worried that water would flow over the road and prevent access to a cooling tower at a power generation plant operated by the employer. The acting production manager told him not to address the problem because it would be a waste of time as the ice would melt on its own, and the road had not washed out in the six years that the production manager had worked there.

The supervisor defied instructions and used a “tiger torch” to try to melt the ice, placing the torch in the culvert. The torch went out and gas accumulated in the culvert. When another worker, directed by the supervisor, went to check on the torch, and tried to light the torch again, there was an explosion. The worker sustained burns to his face, hand, fingers and arm.

The employer was charged with four offences under Saskatchewan’s The Occupational Health and Safety Act including inadequate training.

The court decided that the supervisor and the injured worker had the training necessary in order to avoid the accident. The supervisor had attended a four-day “supervisory essentials” course. The court was satisfied that the company provided the supervisor with “everything he needed to know to prevent the accident”. Also, he had been told not to address the culvert task. Had he been directed to address it, he would have required a work order that would have led to the preparation of a safety and risk hazard form and an application for a hot work permit.  Further, the employer could not reasonably have foreseen the supervisor’s use of the tiger torch or that he would enlist the other worker to assist him.

In conclusion, the court held that the company had taken reasonable care to ensure that the worker and supervisor were properly trained to avoid the accident.   The charges were dismissed.

R v Saskatchewan Power Corporation, 2016 SKPC 2 (CanLII)

Unauthorized supervisor decided to “solve the problem himself”, caused accident – OHSA charges against company dismissed

The Countdown is On: The New OHSA Amendments Come into Force in Less Than 60 Days

As we previously reported, the amendments to the Occupational Health and Safety Act introduced by Ontario’s Sexual Violence and Harassment Legislation, An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters, come into force on September 8, 2016.

By way of reminder, the OHSA amendments expand the Act’s definition of “workplace harassment” to expressly include “workplace sexual harassment”. The amendments also impose additional obligations on employers with respect to their workplace harassment policies, programs and investigations.

With September 8th quickly approaching, the countdown to compliance is on and employers must take the following steps to ensure they meet the Act’s requirements:

  1. Review and revise existing workplace harassment policies and programs to ensure that they specifically contemplate “workplace sexual harassment”.
  2. Work in consultation with the joint health and safety committee or health and safety representative (if applicable) to develop and maintain a written workplace harassment program, which sets out:
  • reporting measures and procedures for workers to report incidents of workplace harassment to their employer or supervisor and, in the event that the employer or supervisor is the alleged harasser, to a person other than the employer or supervisor;
  • how incidents or complaints of workplace harassment will be investigated and dealt with;
  • how information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary for investigating, taking corrective action, or by law; and
  • how a worker who has allegedly experienced workplace harassment and the alleged harasser (if s/he is a worker of the employer) will be informed of the results of the investigation and of corrective action that has been, or will be, taken.
  1. Establish internal timelines and practices to ensure that the written workplace harassment program is reviewed as often as necessary, but at least annually.
  2. Ensure that internal processes are developed and implemented to:
  • conduct investigations into all incidents and complaints of workplace harassment; and
  • inform the workers involved in the incident and/or complaint of the results of the investigation and of any corrective action that has been, or will be, taken as a result.
  1. Develop and maintain resources that provide workers with information and instruction on the contents of the workplace harassment policy and program.

In addition to the OHSA’s existing enforcement mechanisms, the amended Act grants inspectors the power to order an employer to have an impartial third party conduct a workplace harassment investigation, at the employer’s expense. Notably, the OHSA amendments do not detail the circumstances in which an inspector can, or will, issue such an order.

The Ontario Government’s It’s Never Okay Action Plan, which led to the OHSA amendments, indicates that the Government intends to issue a new “Code of Practice” for employers, which will describe in more detail the steps that employers must take to comply with the OHSA amendments. The Code of Practice is expected to be released on or around the September 8th coming into force date and will hopefully provide more guidance on the implementation of the Act.  Stay tuned as we will provide a further update upon its release.

The Countdown is On: The New OHSA Amendments Come into Force in Less Than 60 Days

Fired employee’s Facebook post calling company “s—hole” showed dismissal for workplace outbursts, threat was indeed appropriate

An employee who yelled and swore at a manager about a written test for a maintenance position, and a few days later took a gun out of a box in the company parking lot and “pumped it”, was fired for cause, an arbitrator has decided.  The employee, who already had a lengthy discipline record, also told the human resources manager that he would “regret his actions” and that the employee’s brother” knows” the HR manager, which the arbitrator in the employee’s dismissal grievance found was a veiled threat.

The employee said that the gun, which resembled an assault rifle, was an “airsoft” gun, and that he simply opened the gun box to look at it. He admitted later that it was not a good idea to have done that.

The arbitrator said that the employee’s confrontations with the managers, taken alone, might not have justified dismissal, even though they were very serious in light of Ontario’s Bill 168 which introduced harassment and violence provisions to the Occupational Health and Safety Act in 2010.

However, the employee’s Facebook post after his dismissal showed that he was not willing to take any responsibility for his actions nor show a willingness to avoid outbursts in the future.  The Facebook post described the workplace as a “s—hole” and said that he felt sorry for employees who still had to work “in a place with so much negativity”. He also wrote that since he was “caned” [sic] he no longer had to “concentrate on all the bull[—-] I put up with at that place for 10 years”.

In conclusion, the arbitrator decided that given the employee’s already lengthy disciplinary record and his continuing negative feelings towards the human resources manager and company, as shown by his Facebook post, dismissal was appropriate.

Service Employees’ International Union, Local 1 Canada v Specialty Care Trillium Centre, 2016 CanLII 23212 (ON LA)

Fired employee’s Facebook post calling company “s—hole” showed dismissal for workplace outbursts, threat was indeed appropriate

Delay in OHSA prosecution was not unreasonable: charges not stayed

Even though the case took more than two years to get to trial, an Ontario court has refused to halt a prosecution of a company under the Occupational Health and Safety Act.

Charges were laid against a construction company in January, 2014 after a worker fell nine feet when a ladder slipped. The charges alleged that the company failed to ensure that the ladder was tied down or otherwise secured to prevent slipping.

There were nine court appearances, and a trial was scheduled for January, 2016.  The company, relying on the Canadian Charter of Rights and Freedoms, asked the court to order a stay (similar to a dismissal) of the OHSA charges due to the delay in getting to trial.

The court stated that the “defence was content with the pace of proceedings” and that the company had not provided any evidence that it had suffered “irremediable prejudice” because of the delay.  For instance, there was no evidence that any witness’s recollection had been significantly impaired.  Further, late disclosure of one document had not caused prejudice because the document (disclosed one month before trial) was “of marginal value” as it repeated the Ministry of Labour investigator’s conclusions.  Further, both the defence and the Crown had been responsible for some of the delay in getting to trial.

The court stated that, “A stay is a remedy of last resort. There is a societal interest in having the charges heard on the merits.”  The charges should proceed to trial.

The decision was handed down before the Supreme Court of Canada released its recent, ground-breaking decision on delay in R. v. Jordan, 2016 SCC 27 (CanLII).  It remains to be seen how the new Jordan framework for dealing with delay will be applied in OHSA cases involving corporate defendants.

R. v. Black and McDonald Limited, 2016 ONCJ 345 (CanLII)

Delay in OHSA prosecution was not unreasonable: charges not stayed