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Even “inspecting” equipment is “working on it”: employer guilty of OHSA charge where employees had not even started maintenance work

A maintenance electrician had “worked on” a stuck shipping door when he simply “inspected” it, even though he had not actually performed maintenance on it, a court has ruled.  He was injured when the door fell on him.  The employer was found guilty of failing to ensure that the door was “blocked” before employees worked on it.

The maintenance employee testified that he “took a look at the controller [for the door] just to make sure, looked in to make sure that the P-L-C was powered up”.  He agreed that he was “merely inspecting, trying to determine what the problem was.”

The trial justice found that “some level of work” took place, and therefore that the employer was guilty of the offence of failing to ensure that the shipping door was blocked before it was “adjusted, repaired, or [had] work performed on it”, contrary to the Industrial Establishments regulation under the Occupational Health and Safety Act. 

The appeal judge agreed and upheld the conviction.  He stated that the OHSA did not require that a “minimum or threshold amount of work be performed” before the requirements of the OHSA are triggered.  The maintenance employee’s checks of the electrical system for the door amounted to “some work” and therefore the obligation to “block” the door had been triggered.

Ontario (Ministry of Labour) v. Maple Lodge Farms, 2015 ONCJ 172 (CanLII)

 

Even “inspecting” equipment is “working on it”: employer guilty of OHSA charge where employees had not even started maintenance work

36-year employee properly dismissed for “unprovoked momentary outburst” with knife

A 57 year old employee with 36 years of service was properly fired for one incident in which he cut another employee with a knife, a labour arbitrator has decided.

The employee was a custodian with a textiles company.  He carried two “utility/box” cutting knives, which had short retractable blades.  While eating lunch one day, he became annoyed when a co-worker banged on the lid of his Tupperware container, causing several loud noises.  The employee produced two utility knives and said to the co-worker, “Would you like the curved blade or the straight blade?”  The employee began to swing one utility knife towards the co-worker’s legs, and then above the table towards his chest.  The co-worker reached out to grab the employee’s arm and, in his attempt to protect himself, received a shallow cut to his forearm, which started to bleed.  About an hour later, while the co-worker was leaving the workplace, the employee said, “You are lucky that I didn’t stab you in the heart.”

The employer fired the employee.  The union grieved the firing.  The employee was also charged with and pleaded guilty to the criminal offences of assault with a weapon and uttering a threat.

At arbitration, the arbitrator upheld the dismissal. He found that there was no justification for the employee’s outburst.  Rather, “it was simply an irrational act of anger”.  Although the employee had obtained counselling and anger management training his “unexplainable act” still made it questionable as to whether he would do something similar in future.  Also, the harm to the co-worker could have been grave.  Rather than apologizing to the co-worker, the employee commented that “You are lucky that I didn’t stab you in the heart.”  Further, the judge in the employee’s criminal case ordered that he have no contact with his injured co-worker, which made it very difficult for the employee to return to work.

As a result, the arbitrator was not satisfied that the fact that the employee received counselling and anger management training provided sufficient confidence that he would not engage in similar misconduct if he returned to work.  The fact that the employee’s misconduct was an “unprovoked momentary outburst” was “more of a concern than a consolation”.  Even though the grievor was 57 years  old and had 36 years of service, the discharge was appropriate.  This decision shows arbitrators’ increasing willingness to uphold employers’ decisions to terminate for workplace violence.

Firestone Textiles Company v United Food and Commercial Workers Canada, Local 175, 2014 CanLII 76772 (ON LA)

36-year employee properly dismissed for “unprovoked momentary outburst” with knife

Company that “met or exceeded many industry standards in its operations” still found guilty of OHSA charges

Exceeding industry standards does not, on its own, protect employers from health and safety convictions or fines, a recent court decision shows.

A roofing company was charged with two offences under the Ontario Occupational Health and Safety Act. The charges alleged a failure to ensure that roofing workers were adequately protected by a guardrail system that met the requirements of the Construction Projects regulation under the OHSA.  A worker fell off a roof after he had removed both the middle and upper parts of a guardrail system to dump garbage, without tying-off. His sleeve caught on a motorized buggy he was using to transport waste on the roof; both he and the buggy went over the edge.

The court found that the guardrail system was routinely opened up by removing the middle rail and possibly also the top rail.  The original wooden middle rail had been replaced with an iron bar that was not securely fastened, at the time of the accident, to the guardrail system.  The presence of the removable iron bar violated the regulation.  Also, there was no clear process in place for the garbage disposal at the time of the accident.

The court noted that the company had “generally met or exceeded many industry standards in its operations”, and had clear internal policies, weekly production meetings to discuss safety topics, and “Toolbox Talks”.  It also hired outside consultants to teach various health and safety courses and to perform spot audits of safety.  There was evidence that workers who failed to use safety equipment were sent home without pay and given retraining.  The company had even fired long-term employees who repeatedly violated safety rules.

However, none of that was enough to establish the “due diligence” defence, because the company had not taken “all reasonable steps to prevent this accident”.

This case shows that an excellent safety program may not be enough to defeat OHSA charges if the employer failed to properly address even one particular hazard.

Ontario (Ministry of Labour) v. Semple Gooder Roofing Corporation, 2015 ONCJ 183 (CanLII)

Company that “met or exceeded many industry standards in its operations” still found guilty of OHSA charges

Manager was not a “competent person” to conduct harassment / violence investigation under Canada Labour Code: Court

The Federal Court has held that a manager was not a “competent person” to conduct a workplace harassment investigation under the Canada Labour Code because the employee who filed the complaint had not agreed that the manager was an “impartial party”.

In December 2011, an employee of the Canadian Food Inspection Agency filed a written complaint alleging “miscommunication, favouritism, humiliation, unfair treatment and a lack of respect” on the part of his supervisor.

The CFIA assigned a manager to undertake a “fact-finding” review of the concerns raised in the complaint.  The manager conducted internal investigations and concluded that there were communication issues and unresolved tension, but no evidence of harassment.

The employee contacted a federal Health and Safety Officer, alleging that the manager was not sufficiently impartial to conduct an investigation. The HSO issued a Direction requiring the CFIA to appoint an impartial person to investigate the complaint pursuant to the Canada Labour Code.  The CFIA appealed that direction to an Appeals Officer of the Occupational Health and Safety Tribunal of Canada (who sided with the CFIA), and the employee then appealed to the Federal Court.

The court noted that section 20.9 of Part XX to the Canada Occupational Health and Safety Regulations under the Canada Labour Code sets out procedural obligations of an employer if it receives a complaint of “workplace violence”.  The court held that “harassment may constitute workplace violence, depending on the circumstances”.  The court stated that the alleged harassment in this case could constitute “workplace violence” if after a proper investigation by a competent person it is determined that the harassment could reasonably be expected to cause harm or illness to the employee.  (Workplace Violence is defined in that Regulation as, “any action, conduct, threat or gesture of a person towards an employee in their work place that can reasonably be expected to cause harm, injury or illness to that employee.”

The court noted that under the workplace violence provisions of the Regulation, a person is a “competent person” to conduct a workplace violence investigation if he or she is “impartial and is seen by the parties to be impartial” and has the necessary knowledge, training and experience.

In this case, the employee who filed the complaint did not agree that the manager was impartial.  The court stated:

“What the employer did here was have the Regional Director, Mr. Schmidt, not only institute a pre-screening and fact finding exercise to determine the nature of the complaint and attempt to facilitate mediation, but also conduct a full investigation of the complaint, acting as a competent person under section 20.9(3). In his report, Mr. Schmidt mentions ‘investigation’ eight times and refers to his review of the evidence before him. He was not competent to do so, given there was no agreement that he was an impartial party by the employee and therefore had no authority to conduct any investigation, once the allegation of work place violence was unresolved at the pre-screening stage and still a live issue between the parties.”

As such, the manager’s investigation was essentially unusable, and the court referred the matter back to the Appeals Officer for re-determination of the issues in accordance with the court’s decision.

This decision shows the importance of employers – at least federally-regulated employers who are subject to the Canada Labour Code - of strictly complying with the workplace violence and harassment procedures set out in legislation or regulations.

Public Service Alliance of Canada v. Canada (Attorney General), 2014 FC 1066 (CanLII)

Manager was not a “competent person” to conduct harassment / violence investigation under Canada Labour Code: Court

April 1, 2015: New Working at Heights Training Requirements on Construction Projects

Falls from heights are one of the leading causes of critical injuries and fatalities in Ontario workplaces according to the Ministry of Labour. As a result, beginning April 1, 2015, employers in Ontario must ensure that workers on construction projects who are required to use certain methods of fall protection complete an approved Working at Heights training program.

The Occupational Health and Safety Awareness and Training Regulation (O. Reg 297/13) (see our previous posts here) has been amended to provide for mandatory Working at Heights training. These amendments come into force April 1, 2015.

However, there is a two-year transition period for certain workers: the Working at Heights training requirements do not apply until April 1, 2017 in respect of a worker who has completed training that meets the requirements of the Construction Projects Regulation (section 26.2 of O. Reg. 213/91) before April 1, 2015. If a worker has not been adequately trained in the use of fall protection systems before April 1, 2015, then the training requirements apply as of April 1, 2015.

Who Must be Trained?

The Working at Heights training requirements apply to workers on construction projects who are required under the Construction Projects Regulation to use any of the following methods of fall protection:

  • A travel restraint system;
  • A fall restricting system;
  • A fall arrest system;
  • A safety net;
  • A work belt; or
  • A safety belt.

The Working at Heights training requirements apply in addition to the existing training requirements under the Construction Projects Regulation with respect to fall protection systems. The fall protection systems training under the Construction Projects Regulation requires, among other things, that a worker who may use a fall protection system is adequately trained in its use and given adequate oral and written instructions by a competent person.

Workers who work at heights and use fall protection systems at workplaces not covered by the Construction Projects Regulation do not have to complete the Working at Heights training at this time.

What Will the Training Cover?

The Chief Prevention Officer (CPO) has established Working at Heights training standards for training programs and for training providers.

The Working at Heights Training Program Standard contains the required information that must be included in a CPO-approved training program. Specifically, the Working at Heights training program will consist of two modules:

  • Module 1: Working at Heights Basic Theory – covers foundational elements on how to work safely at heights. It must be at least three hours long.
  • Module 2: Working at Heights Practical – provides more advanced information on fall protection systems and includes hands-on demonstration of equipment and procedures. It must be at least three and a half hours long.

The Working at Heights Training Provider Standard outlines the requirements for training providers seeking approval by the CPO to deliver an approved training program.

What are the Responsibilities of an Employer?

In respect of a worker who may use one of the methods of fall protection listed above, employers are required to ensure the following:

1. workers have successfully completed a Working at Heights training program that is approved by the CPO as meeting the Working at Heights Training Program Standard that applied at the time of the training

2. the training provider is approved by the CPO as meeting the Working at Heights Training Provider Standard that applied at the time of the training

3. the validity period of a worker’s training has not expired

4. a record of the Working at Heights training is maintained and includes the following information:

  • the name of the worker
  • the name of the approved training provider
  • the date on which the approved training was successfully completed
  • the name of the approved training program that was successfully completed

5. the record of training is available to a Ministry of Labour inspector on request

What is Required in a Record of Training and How do Workers Get It?

According to the Ministry of Labour, an approved training provider is required to provide a worker with proof of training upon successful completion of the training program.

The approved training provider must also notify the CPO of a worker’s successful completion of an approved Working at Heights training program. Upon receipt of such notification, the CPO will issue a wallet-sized proof of training card to the worker. A copy of a worker’s proof of training card issued by the CPO is considered a training record.

The Ministry of Labour will keep a secure, centralized database of all workers who successfully completed the training (collected by the CPO under the authority of the OHSA).  Workers and current or potential employers (with the worker’s consent) will be able to access information about a worker’s successful completion of a Working at Heights training program.

For How Long is the Training Valid?

The training is valid for three years from the date of successful completion of the training program. According to the Ministry of Labour’s “Frequently Asked Questions”, once a worker’s training is no longer valid, the worker can take an approved half-day “refresher” training program (which covers the contents of Module 2) to renew the validity of his or her training.

A worker does not need to retake the Working at Heights training if the worker changes employers during the three-year validity period. An employer should request that new employees provide proof of completion upon hiring.

How Can an Employer Find a CPO-Approved Provider?

The Ministry of Labour website lists CPO-approved Working at Heights training providers and programs, as well as the dates on which they were approved. At the time of writing, there are seven CPO-approved providers listed on the website.

If an employer wishes to deliver “in-house” training to its workers, it must seek CPO approval to become a training provider. More information on the provider application can be found here.

What are the Potential Consequences if an Employer does not Comply?

A Ministry of Labour inspector may request that an employer provide copies of records of Working at Heights training for its workers, or a worker provide a copy of his or her CPO-issued proof of training.  If an employer has not complied with the mandatory Working at Heights training requirements, an inspector may take enforcement action, including issuing orders requiring an employer to comply, issuing a stop work order where an imminent hazard exists, or prosecuting an employer under the Provincial Offences Act, where appropriate.

Keep checking www.occupationalhealthandsafetylaw.com for further updates on this topic.

April 1, 2015: New Working at Heights Training Requirements on Construction Projects

Aggravated damages awarded under OHSA for retaliatory firing

An employer has been ordered to pay aggravated damages – in addition to lost wages – after firing an employee in retaliation for raising safety issues.

The employee worked at a hair salon. She suffered an injury at work as a result of unsafe working conditions.  The employer did not take any steps to address the safety issues, nor did it report the injury to the Workplace Safety and Insurance Board.

After the employee filed a complaint with the Ministry of Labour, the employer dismissed her. She then filed a safety-reprisal complaint with the Ontario Labour Relations Board. The employer did not attend the hearing at the OLRB.

The OLRB found that she was dismissed in retaliation for raising safety concerns. It awarded her lost wages.  Interestingly, the OLRB also awarded her aggravated damages for mental distress, stating that such damages are appropriate where the employer violates a “statutory prohibition”.

The OLRB stated:

“Here the evidence is clear that the circumstances of the Complainant’s dismissal were insensitive, demeaning and humiliating. Mr. Vasiliades callously disregarded her workplace injury, failing to report it to the Workplace Safety and Insurance Board and pressured her to continue working despite her protestations of the seriousness of her injury. The Complainant was summarily dismissed while on sick leave solely for acting in accordance with the statutory mandate when she reported the hazardous working condition and her injury to the Ministry; she was threatened with arrest were she to set foot on the premises of Pro-Hairlines; she was denied her final paycheque; she was denied the opportunity to collect EI by the Employer’s bogus claim that she was self-employed and its refusal, in total disregard of federal legislation, to issue an ROE to which she was entitled. The Complainant was no longer self-sufficient as a direct result of the Employer’s conduct and suffered loss of self-esteem as she was forced to rely on her father for the basic necessities of food and shelter. Such economic dependence was humiliating for the Complainant.  The psychological and mental distress she suffered was compounded by the lingering physical effects of the serious electrical shock she had sustained due to the hazardous conditions at the workplace for which the Employer was responsible. The Complainant’s sense of loss of dignity and self-respect can be laid directly at the feet of the Employer, acting through Mr. Vasiliades who throughout the dismissal process acted in a manner that was unfair and in bad faith, being both untruthful, misleading and unduly insensitive.”

The OLRB ordered the employer to pay the employee $16,659.00 as damages for lost wages, and $7,500.00 as aggravated damages, for a total of $24,159.00.

Brenda Bastien v 817775 Ontario Limited (Pro-Hairlines), 2014 CanLII 65582 (ON LRB).

Aggravated damages awarded under OHSA for retaliatory firing

OHSA does not protect against retaliation for merely sustaining injury: OLRB

The Occupational Health and Safety Act may protect employees against retaliation for asserting their rights under that Act, but not for merely sustaining an injury, the Ontario Labour Relations Board has decided.

An employee filed a complaint under section 50 of the OHSA. She asserted that by not giving her the job of Manager of Corporate Learning, the employer retaliated against her because she sustained an injury, and that that retaliation violated the OHSA.

The OLRB stated that even if it were true that the employer retaliated against her for sustaining a workplace injury, “sustaining an injury is not an assertion of a right under the Occupational Health and Safety Act, and hence there is no basis for a reprisal complaint.

Section 50 of the OHSA provides that an employer must not dismiss, discipline, penalize or intimidate or coerce a worker “because the worker has acted in compliance with this Act or the regulations or an order made thereunder, has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act.”

None of those circumstances were present in this case.  As such, the OLRB dismissed the retaliation complaint.

Krupp v UNIFOR, Local 229, 2015 CanLII 2111 (ON LRB)

 

OHSA does not protect against retaliation for merely sustaining injury: OLRB

No punches thrown, but employee properly dismissed for yelling, swearing and abusive conduct

An employee need not physically assault a co-worker in order to be dismissed for workplace violence, an arbitrator’s decision shows.

The employer had 8 “Golden Rules” of workplace health, safety and environmental standards.  The employee had signed a document that said he understood that failure to comply with the Golden Rules and all other posted plant safety rules “may result in disciplinary action up to and including termination”.

Less than 3 months later, the employee got into an altercation with a co-worker.  There was yelling, swearing and abusive language.  A third employee intervened to separate the two employees when it looked like they were about to hit each other.

The employer’s investigation found that the employee had called the other employee, who was said to have a heavy build, a “fatass” and made a derogatory reference to the other employee’s sexual orientation.  When the third employee tried to break up the altercation, the employee continued to argue with and antagonize the other employee.  Also, both men had removed their hard hats, indicating that they were preparing to hit each other with their fists.

The union argued that this incident of fighting and violence was at the “low end” of the spectrum.  The union noted that there was no physical contact between the fighting employees; “it was all words”.  Also, there were no physical injuries.

The arbitrator disagreed, finding that the employee chose to use words that directly attacked the other employee’s physical appearance and his sexual orientation.  This was “over and above both employees’ use of more traditional, garden-variety, profanities”.  Further, “particularly hurtful comments directed at an individual’s appearance can, even in the absence of physical violence, warrant termination of employment”.  Further, the employee continued to “egg on” the other employee after the third employee tried to break up the altercation.  Lastly, the plant operated around the clock and the employer required all employees, who had been trained on its workplace violence policy, to exercise some degree of self-restraint.  The employee had, instead, tried to escalate to physical violence and likely would have done so if the third employee had not intervened.

The employee had only 15 months of service, had received extensive training on the employer’s workplace violence policy and harassment policy, and had been given a copy of the employer’s “Golden Rules”. He showed very little insight into how his own behaviour was a contributing factor.  He did not see himself as accountable for his own actions.  He did not apologize until the day of the hearing.

The arbitrator upheld the dismissal.

Unifor Local 80-0 v Certainteed Insulation Canada, 2015 CanLII 600 (ON LA)

No punches thrown, but employee properly dismissed for yelling, swearing and abusive conduct

“Flagrant disregard” of OHSA, failure to report, gets construction company convicted on 5 OHSA charges

A construction company that tried to blame a worker’s fall on his untied boots, has been found guilty of all 5 charges against it under Saskatchewan’s The Occupational Health and Safety Act.

The 18-year-old worker, who had been on the job for 6 or 7 hours, fell at least 20 feet and broke his wrist and 2 vertebra.  He had been working on roof trusses that were 20 to 25 feet off the ground. He had not received any training and there was no fall protection equipment provided.

The contruction company argued that the worker was not its employee but rather was an independent contractor. The court rejected that argument, finding that the worker was under the direction of the owner’s son; had no independent control of his employment; his wages were set by the company’s owner; no one ever suggested to him that he was a self-employed contractor; and he considered himself to be an employee.

The contruction company failed to report the accident to Saskatchewan Occupational Health and Safety. A representative of Saskatchewan Occupational Health and Safety testified that they had received notice from Worker’s Compensation, not the company.  As such, the court convicted the company of failing to report to Saskatchewan Occupational Health and Safety where a worker is required to be admitted to a hospital as an inpatient for a period of 72 hours.

The court also convicted the employer of failing to train; not providing fall protection equipment; failing to provide competent supervision (which was clear because the company violated basic requirements under the OHSA); and failing to ensure that the worker wore approved industrial protective headgear.

The owner of the company argued that the injured worker caused the accident as his boots were not tied.  The court noted that that was irrelevant as the employer had a duty to supervise and ensure proper safety procedures on the work site were followed.  It is generally not prudent to attempt to blame the injured worker for a relatively minor transgression when the company committed serious safety violations.

As such, the court found the company guilty on all 5 charges under The Occupational Health and Safety Act.

R. v Fred Thue Construction Ltd., 2014 SKPC 168 (CanLII)

“Flagrant disregard” of OHSA, failure to report, gets construction company convicted on 5 OHSA charges

OHSA charges were adequately particularized, court finds: disclosure showed violations Crown intended to prove

A judge has rejected an employer’s argument that Occupational Health and Safety Act charges against it were unclear and that the Crown was required to provide further “particulars” of the charges so the employer could defend itself after an employee was electrocuted.

“Particulars” are details, provided in addition to the charges themselves, that help the defendant understand what it is accused of doing or failing to do.

There were two charges against the employer, a company that provided commercial and residential electrical services: (1) a failure to provide adequate training, and (2) a failure to ensure that an electrical installation was serviced, repaired or dismantled in accordance with the latest version of CSA standard, “CSA C22.1, ‘Canadian Electrical Code Part 1′, Safety Standard for Electrical Installations”.

The company argued that it required particulars of the 2 charges so that it could know what it “did or did not do that it should have done” to prevent the employee’s death.

The court noted that the effect of ordering that the Crown provide further particulars is that the Crown must prove the offence, as particularized, beyond a reasonable doubt.

The court ultimately decided that the disclosure provided to the employer indicated what witnesses are expected to say happened. The disclosure suggested that the Crown would seek to prove that the company had no supervisors on site with the worker. The disclosure included an expert’s report that concluded that the electrical work being done by the worker was not being performed in a safe manner as set out in the CSA standard.

The court decided that an order for particulars was unnecessary and would unreasonably restrict the Crown’s case.  Further, the judge said, “I fail to see how Longard does not know the case it is facing”.

R. v. R.D. Longard Services Ltd., 2014 NSPC 100 (CanLII)

OHSA charges were adequately particularized, court finds: disclosure showed violations Crown intended to prove

“Who is a supervisor?” Ontario Ministry of Labour releases guideline

Employers often struggle with the question of who is a “supervisor” under the Ontario Occupational Health and Safety Act. The answer to that question is obviously important because supervisors have legal duties under the OHSA, violations of which can lead to charges and fines.

The Ontario Ministry of Labour has recently released a “guideline” called, ”Who is a Supervisor under the Occupational Health and Safety Act?”

The MOL provides, in that guideline, two lists of “powers and responsibilities that may be exercised or carried out by a supervisor”. The MOL says that the first list includes powers that are “primary indicators of being in a supervisory role”, and the second list “includes responsibilities that would generally be carried out on the job site by a front-line supervisor who interacts directly with workers”:

“1.  Powers that are primary indicators of being in a supervisory role include the power to:

  • hire, fire or discipline,
  • recommend hiring, firing or discipline,
  • promote, demote or transfer,
  • decide a worker’s rate of pay,
  • award bonuses,
  • approve vacation time,
  • grant leaves of absence, or
  • enforce procedures established to protect worker health and safety.

2.  A person with none of the powers listed above could still be a supervisor as defined in the OHSA, if he or she has some of the following responsibilities:

  • determining the tasks to be done, and by whom,
  • directing and monitoring how work is performed,
  • managing available resources such as staff, facilities, equipment, budget,
  • deciding on and arranging for equipment to be used on a job site,
  • deciding the make-up of a work crew,
  • deciding on and scheduling hours of work,
  • dealing directly with workers’ complaints, or
  • directing staff and other resources to address health and safety concerns.”

The MOL guidance goes on to provide examples as well as summaries of relevant court decisions.

Ontario employers, particularly those in safety-sensitive businesses, should familiarize themselves with the guideline, and ensure that all supervisors (1) know that they are “supervisors” under the OHSA, (2) have taken the MOL’s required basic supervisory safety awareness training, (3) are fully aware of their duties under the OHSA, and (4) have received the workplace-specific safety training necessary for them to comply with their duties under the OHSA.

“Who is a supervisor?” Ontario Ministry of Labour releases guideline

Update on changes to WHMIS requirements and transition period

Work Safe Alberta has released an Occupational Health and Safety bulletin to assist Alberta employers and workers understand the impact of the recent amendments to the federal WHMIS legislation ( see my earlier blog post Federal government announces changes to WHMIS Legislation ) particularly during the transition period when suppliers have the option to comply with either the new WHMIS system (WHMIS 2015) or the old system (WHMIS 1988).

During the transition period, Alberta employers may receive hazardous products that follow either WHMIS 1988 or WHMIS 2015. Employers will need to be familiar with both systems and be able to educate and train workers on both systems. The Work Safe Alberta bulletin provides guidance to employers in meeting their WHMIS obligations during this transition period and until Alberta’s occupational health and safety legislation is amended to align with the federal WHMIS changes.

The Work Safe Alberta bulletin can be found here.

The federal transitional requirements can be found in the Canada Gazette Part II.

Update on changes to WHMIS requirements and transition period

Constructor made mistake of law, not fact: convicted of OHSA charge

A constructor that argued the “mistake of fact” due diligence defence was instead found to have made a “mistake of law” and was convicted of a charge under the Occupational Health and Safety Act. 

A construction employee was injured when a large slab of ice fell from the face wall of a water intake tunnel being constructed.  A few minutes before, workmen suspended by a crane in a basket had been chipping away ice from that area.  The constructor was charged with three offences under the Occupational Health and Safety Act.  The second charge, which the Ministry of Labour inspector admitted alleged “technical” safety violations that played no role in the accident, alleged that the constructor failed to ensure that a load rating chart, prepared by a professional engineer, was affixed in a conspicuous place on the crane.

The crane operator admitted that he was “still waiting” to receive the load rating chart from the professional engineer.  As such, the appeal court found that the constructor guilty on the second charge.

The constructor argued the “mistake of fact” branch of the due diligence defence. It argued that there was a rating chart at the base of a removable plywood platform (that is, at the workers’ feet) that was a suitable “variation” on the legal requirement.  It also purported to rely on a “comfort” letter from an engineering firm. The appeal court held, however, that any mistakes the constructor made were “mistakes of law not fact”: the variations were not permissible because the employer had not given written notice to the joint health and safety committee, and the engineering firm’s letter did not refer to the regulation and could not, in any event, displace the requirements of the regulation.  A mistake of law is not a defence.  As such, the constructor was convicted on the rating chart charge.  Two other charges against the constructor were dismissed.

Ontario (Ministry of Labour) v. Dufferin Construction Company, 2014 ONCJ 652

 

Constructor made mistake of law, not fact: convicted of OHSA charge

Mere posting of standard operating procedure was not enough: OLRB refuses to suspend MOL inspector’s training order

Employers often post new procedures in the workplace without providing formal training.  A recent decision of the Ontario Labour Relations Board suggests that for some work procedures, posting is not enough; rather, training is required.

After a concern was expressed, a transit company updated its Standard Operating Procedure on how to handle a complete brake system pressure loss.  A Ministry of Labour inspector asked whether all affected employees have been trained on the updated procedure, which had been posted on information boards and video screens.  The employer’s response was that affected employees should read the information boards and video screens.

The inspector was apparently concerned that the employer could not prove that all affected employees were aware of the new procedure or how it was to be applied.  The inspector ordered the employer to “provide instruction and training” on “the hazards of vehicular traffic in the event of a complete brake system pressure loss in a bus”.

The employer appealed the order and argued that there was no suggestion that the employees did not understand the updated procedure or that they were not aware of it. As such, said the employer, the inspector’s order should be suspended pending the appeal.

The Ontario Labour Relations Board held that the failure to train or instruct on the updated procedure could endanger the safety of employees.  Further, the training did not put an onerous burden on the employee.  As such, the mere posting of the procedure was not enough, and the MOL inspector’s training order was not suspended.

London Transit Commission v Amalgamated Transit Union, 2014 CanLII 68423 (ON LRB)

Mere posting of standard operating procedure was not enough: OLRB refuses to suspend MOL inspector’s training order

Run over by shoplifter in parking lot, retail employee may sue employer and supervisor despite having WSIB coverage

A retail employee who helped pursue a shoplifter, in violation of the employer’s workplace violence policy, was not entitled to WSIB benefits and could sue the employer and a supervisor in the courts for her injury.

The employee was standing outside the grocery store, where she worked, on her break. The supervisor, who had just finished his shift, followed a suspected shoplifter to his van.  The employee also followed.  The supervisor confronted the shoplifter who accelerated away and ran over the employee with both his front and rear driver-side wheels.  The employee was hospitalized and had not yet returned to work.

The employee sued the employer and the supervisor seeking damages.  The employer applied to the Workplace Safety and Insurance Appeals Tribunal for a declaration that the employee’s right to sue was taken away by the Workplace Safety and Insurance Act because she had Workplace Safety and Insurance Board coverage.

The WSIAT held that the employee’s injury did not arise out of and in the course of her employment.  It was important that the employee, in participating in the confrontation of the shoplifter, had violated both the employer’s “Non-Pursuit Policy” and Workplace Violence Policy which prohibited most employees from pursuing shoplifters.  Further, she was on a break at the time of the incident.  Pursuing shoplifters was not one of her duties and was not even incidental to her duties.  Her pursuit of the shoplifter was of no benefit to the employer because it violated company policy and made her unavailable to return to her regular duties.  For similar reasons – plus the fact that he had finished his shift - the supervisor was found not to be in the course of his employment at the time of the accident.

As such, the employee was entitled to sue both the employer and the supervisor in the courts.

It is interesting to note that the employee’s own misconduct (violating the company’s non-pursuit policy) was one of the factors that took her “out of the course of” her employment and permitted her to sue the employer instead of claiming WSIB benefits.

Guizzo v. Metro Ontario Inc., 2014 ONWSIAT 2526

Run over by shoplifter in parking lot, retail employee may sue employer and supervisor despite having WSIB coverage

Having an active joint health and safety committee can help employers defend against OHSA charges, court decision suggests

An Ontario court has dismissed charges under the Occupational Health and Safety Act after two incidents which the joint health and safety committee did not identify as posing a “high priority” safety concern.

The charges arose from two incidents on an assembly line at Magna Seating Inc. in which workers were struck by a partly-manufactured vehicle seat that had fallen forward from an upright position, “which is not unlike when someone releases the lever on a seat in an automobile and the seat falls forward due to the tension of the seat’s springs.”

The two charges were: failing to ensure that things were transported so that they would not tip, collapse or fall; and failing to ensure that a machine (the conveyor that transported the seats) was guarded.

The court noted that almost two million seats had been built on the assembly line with only two documented occasions in which a seat had fallen forward. In one incident, a worker’s lip had been cut; she required only a Band-Aid.  In the second incident, the seat had struck a worker in the chest; she was taken to the hospital but was released two hours later with a prescription for painkillers.

The Justice of the Peace noted that  the Joint Health and Safety Committee, comprised of management and workers, were aware of the two incidents but had not considered the seat falling forward issue to be of high priority; also, the possibility of guarding being implemented was still being investigated by the joint health and safety committee.

Ultimately, the charges were dismissed because the Justice of the Peace decided that the conveyor was not a “machine” within the meaning of that term in the regulation, and Magna had taken all reasonable care to ensure that workers were not injured from seats falling forward.

The case shows that having a well-functioning and active joint health and safety committee can actually help an employer defend against Occupational Health and Safety Act charges. If the committee was aware of and considered a safety issue and determined there was no – or a minimal – hazard, that is evidence that can assist an employer to show that it acted with due diligence.

Ontario (Ministry of Labour) v. Magna Seating Inc., 2015 ONCJ 7 (CanLII)

Having an active joint health and safety committee can help employers defend against OHSA charges, court decision suggests

“If you think your salary is low . . .”: employer’s presentation was “offensive, distasteful and inappropriate as a motivational tool”, but not illegal

An adjudicator has criticized an employer’s motivational presentation as “offensive, distasteful and inappropriate as a motivational tool”, but found that it was not illegal.

The presentation was delivered by a Regional Manager with the Ontario Ministry of Transportation to Transportation Enforcement Officers employed by that Ministry.  It was called, “New Year New Outlook”.

The presentation contained “graphic imagery of poverty in the developing world” and compared this imagery to “trivial” problems in the developed world. One slide asked, “If you think your salary is low, how about her?” accompanied by a photo of a child.  Another slide asked, “Why do we complain?” while the next slide stated, “Let’s Have New Expectations!”

Some employees, noting that the collective agreement was set to be negotiated that year, felt that the presentation was a tool to disincentivize the union from bargaining an advantageous agreement for them.  One employee said she felt that the presentation was calling her and other employees lazy and insinuating that they demanded too much.  Employees felt that the presentation was condescending and presumptuous and suggested that they were lucky to have jobs.

The union argued that since the majority of the images of poverty in the developing world showed people of colour, the use of those images violated the Human Rights Code.  The adjudicator, a member of the Grievance Settlement Board, noted that none of the employees asserted that they have racial characteristics that were protected under the Code; hence, there was no discrimination proven.

The union also argued that the presentation constituted harassment under the Human Rights Code.  The adjudicator rejected that argument because the union had not even “asserted that the harassment alleged to have taken place was because of a protected characteristic possessed by any of the” employees.

Lastly, the adjudicator decided that there were no facts asserted that showed that any of the employees suffered any discriminatory treatment because of their union membership or activity.  The employer’s message that they should be content with their employment terms was not discriminatory because of their union membership.

The adjudicator went on to state that by deciding that the presentation did not violate the collective agreement or the Human Rights Code, he was not saying that the presentation was “fine”.  Instead, he stated:

“The Board’s acceptance for purposes of this motion that the presentation was offensive, distasteful and inappropriate as a motivational tool, cannot possibly lead to a finding that any of the collective agreement or statutory rights of the grievors were violated . . . The dismissal of these grievances on the basis of absence of jurisdiction is certainly not, and ought not be seen as, a finding by the Board that the employer conduct was ‘fine’ or that the Board endorses such conduct.  The fact that 39 individuals found the presentation to be offensive to such an extent to cause them to grieve, speaks for itself. The employer, through communications of regret/apology appears to have realized that the presentation was negatively received by a large number of employees.”

The grievance against the presentation was therefore dismissed.

Ontario Public Service Employees Union (Brydges et al) v Ontario (Transportation), 2014 CanLII 74778 (ON GSB)

“If you think your salary is low . . .”: employer’s presentation was “offensive, distasteful and inappropriate as a motivational tool”, but not illegal

Federal government announces changes to WHMIS Legislation

The federal government has announced certain amendments to the federal Workplace Hazardous Materials Information System (WHMIS) legislation which covers suppliers of hazardous chemicals in Canada. The purpose of the amendments is to align with the Globally Harmonized System for Classification and Labelling of Chemicals (GHS). The GHS is being adopted by countries around the world and provides a consistent international system for chemical classification and labelling.

While the amendments came into force February 11, 2015, there will be a transition period during which suppliers can comply with either the old WHMIS system (WHMIS 1988) or the new WHMIS system (WHMIS 2015).

Alberta’s Occupational Health and Safety Code, 2009 (OHS Code), Part 29 contains the applicable WHMIS requirements for employers and workers in Alberta and is in the process of being amended to align with the federal legislation and the GHS. It is anticipated that there will also be a transition period during which Alberta employers can comply with either or both WHMIS systems.

Further information about these changes can be found on the Work Safe Alberta website or the Health Canada website.

Federal government announces changes to WHMIS Legislation

OHSA charges dismissed: not appropriate for MOL to charge under “general duty” clause where specific regulation addressed safety issue

In dismissing Occupational Health and Safety Act charges against an employer arising out of a fatality, an Ontario court has held that it is not appropriate for the Ministry of Labour to charge under the “general duty clause” found in s. 25(2)(h) of the OHSA to “extend requirements beyond those specifically outlined in” the regulations under the OHSA.

In the case at hand, a worker had been welding a large steel product, approximately 6.5 feet off the ground, standing on planks atop A-frame steps.  He fell to his death.

The MOL charged the employer under section 25(2)(h), often called the “general duty clause”. That section requires employers to “take every precaution reasonable in the circumstances for the protection of a worker”. The charge alleged that the employer “failed to take the reasonable precaution of installing guardrails at the open sides of a raised wood platform”. A second charge alleged that the employer failed to properly train the worker regarding working on a raised platform.

The employer successfully argued that the Industrial Regulations under the OHSA specifically dealt with guardrails and did not require a guardrail around the planks on which the worker was working. Section 13 of that Regulation, which was in the “Premises” section of the Regulation, required a guardrail around the perimeter of an uncovered opening in a floor, roof or other surface, and at the open side of a raised floor or other surface. The Justice of the Peace decided, however, that section 13 dealt only with “fixtures” – that is, surfaces such as a walkway that were attached to the premises.  It did not require a guardrail around the planks on which the worker was working atop two portable A-frame steps.

The Justice of the Peace held that it was not appropriate to attempt to use the general duty clause in s. 25(2)(h) of the OHSA to impose a stricter requirement than was found in the Regulation. Put another way, a guardrail could not be a “reasonable precaution” where the Regulation section that dealt with guardrails did not require one.

The Justice of the Peace also dismissed the training charge, holding that because a guardrail was not required, there was “no gap” in the training provided to the worker with respect to working on a raised platform.

Ontario (Ministry of Labour) v. Quinton Steel (Wellington) Limited, 2014 ONCJ 713 (CanLII)

OHSA charges dismissed: not appropriate for MOL to charge under “general duty” clause where specific regulation addressed safety issue

False assault allegation against supervisor was just cause for dismissal: video evidence was conclusive

An employee who filed a written complaint, falsely alleging that his supervisor deliberately ran into him with a sharp blow from his shoulder, was dismissed for cause, an arbitrator has held.

Unfortunately for the employee, video evidence showed his allegation to be false.

The employee, a warehouse worker, had seven years of service and had received two prior suspensions in the previous twelve-month period.

The supervisor denied the allegation, and no witnesses supported the employee’s version of events.  Video evidence showed the corridor at the time when, according to the employee, he was assaulted.  The video showed that no such assault took place.

The arbitrator held that the evidence was overwhelmingly against the employee’s account of what had occurred. In particular, the video showed that there was no contact.  The employee had falsified the allegation against his supervisor.  This was very serious, as the allegation was that the supervisor had committed assault.  That allegation, if accepted, “could have extremely negative consequences” for the supervisor including possible criminal charges. The allegation was calculated to harm the supervisor.  The making of the allegation was so serious as to “undermine the possibility of any ongoing employment relationship”.

As such, the employee was dismissed for just cause.

DB Ontario Inc. v United SteelworkersLocal 3327, 2014 CanLII 77057 (ON LA)

 

False assault allegation against supervisor was just cause for dismissal: video evidence was conclusive