More than two-thirds of Ontario companies charged under the Occupational Health and Safety Act plead guilty. Defendants who plead guilty and allow the court to set their fines pay, on average, 40% less in fines than defendants who plead guilty and accept the Ministry of Labour’s proposed fine. At least one party is convicted and fined in 82% of Ontario workplace incidents that result in occupational health and safety charges. Two-thirds of corporations that go to trial are found guilty. These are some of the nine findings that we have drawn from our study of unpublished prosecution data obtained from the Ontario Ministry of Labour through a Freedom of Information request.

From the data, which involves 863 defendants – 592 corporations and 271 individuals such as supervisors and workers – charged with offences under the Occupational Health and Safety Act, we have been able to paint a statistical picture of what actually happens when employers, supervisors, workers and others are charged under the Occupational Health and Safety Act.  All of the charges in our study were resolved during the eighteen-month period from January 2009 to June 2010.

The results of our study may be accessed at: Statistical Analysis of 863 Ontario Occupational Health and Safety Act Prosecutions Report

According to the Ministry of Labour, new and young workers are four times more likely to be injured during their first month of employment than at any other time.

As the summer season is now upon us and many young workers are poised to begin summer jobs, the Ministry of Labour has announced an enforcement blitz that will target workplaces where new and young workers are employed.  The blitz will focus on:

• New and young workers aged 14 to 24 years
• New workers that are 25 years and older and who are on the job for less than six months or reassigned to a new job

The blitz will focus on ensuring that young workers:

• Are protected by required safety measures, equipment and procedures to prevent injuries
• Are properly instructed, trained and supervised on jobs
• Meet minimum age requirements.

Ministry of Labour inspectors will be specifically targeting workplaces that tend to employ a high proportion of young workers such as retail stores, wholesalers, restaurants, tourism and recreational facilities, vehicle sales and service centres, hospitals, nursing homes, retirement homes, agencies that provide services for the developmentally challenged, low-rise construction projects, municipalities and workplaces involving farming operations, logging and transportation.  Inspectors will also check workplaces such as golf courses, camps, temporary agencies amusement parks, and workplaces where workers are engaged in activities such as landscaping.

For more information, see:   http://news.ontario.ca/mol/en/2012/04/safety-blitz-helps-protect-new-and-young-workers-1.html

An Alberta arbitrator ruled that a company had just cause to immediately terminate the employment of a lead mechanic for a Lockout/Tag Out Policy violation because of the exceptional lengths the company had gone to in order to maintain a high level of safety in the plant.

On the day of the incident, a lead mechanic, with seven years of service with the company, was called to the shrink wrapper area and reported that it was not working and that the trunnion wheel had snapped. As the same problem had occurred previously, the mechanic knew that the gear box had to be replaced. He locked out the machine and replaced the gear box. The mechanic later received a call that the shrink wrapper was still not functioning properly. Rather than following the company’s Lockout/Tag Out Policy, the mechanic returned with a rag to clean the oil off the trunnion wheel. He held the rag on the trunnion wheel intending to clean off the oil while the wheel rotated. A jagged edge on the inside part of the rotating wheel caught the rag and flipped the mechanic’s right hand. His thumb nail was removed on impact. The mechanic immediately reported the incident, a workplace investigation followed and the worker was terminated for cause.

The mechanic claimed that he was wrongfully dismissed. The arbitrator concluded that the mechanic was well-versed on the plant safety policy, as well as the expectations of the company and the consequences for failing to follow the Policy at the time of the incident. Moreover, given his experience and position as a mechanic leader, and bearing in mind the emphasis of the company on the importance of observing safety procedures, the arbitrator found it difficult to understand why the mechanic did not follow the Policy on the day of the incident. A deliberate and conscious decision to ignore the Policy was made and can only be viewed as an act of defiance which undermined the confidence and trust of the company. The arbitrator ruled that the just cause termination was justified.

A key point from this case is that if a company policy is relied on for an employee’s termination, the company must ensure that employees are thoroughly aware of company policies and the consequences that may result from a violation.

Lamb-Weston v United Steelworkers of America (Local Union 6034), 2011 CanLII 82275 (AB GAA),
http://canlii.org/en/ab/abgaa/doc/2011/2011canlii82275/2011canlii82275.html

The British Columbia legislature recently tabled amendments to Bill 14—the WORKERS COMPENSATION AMENDMENT ACT, 2011—to address bullying and harassment in the workplace. The amendments to Bill 14, among other things, expand workers’ compensation to expressly address mental disorders caused by significant work-related stressors such as bullying and harassment. In addition, WorkSafeBC, the entity tasked with the administration of the Workers’ Compensation Act, R.S.B.C. 1996 c. 492, will, in consultation with stakeholders, be amending and updating its existing workplace violence policies and procedures to deal specifically with claims of bullying and harassment. It is anticipated that these amendments will include a requirement for employers to implement formal prevention plans. Bill 14 had its second reading in the legislature on May 3 and is not yet law.

In some recent cases at the Ontario Labour Relations Board, unions have attempted to use the provisions of the Occupational Health and Safety Act to argue that only the unions’ members can perform certain work.

The latest example is an application brought by the International Brotherhood of Electrical Workers (IBEW) arguing that only its members, licensed electricians, are entitled to insert a certain type of plug into a receptacle.

The IBEW relied on section 182 of the Construction Projects regulation under the OHSA,  which provides that:

“182 (1)  No worker shall connect, maintain or modify electrical equipment or installations unless,

(a) the worker is an electrician certified under the Trades Qualification and Apprenticeship Act; or

(b) the worker is otherwise permitted to connect, maintain or modify electrical equipment or installations under the Trades Qualification and Apprenticeship Act, the Apprenticeship and Certification Act, 1998 or the Technical Standards and Safety Act, 2000.

(2)  A worker who does not meet the requirements of clause (1) (a) or (b) may insert an attachment plug cap on the cord of electrical equipment or an electrical tool into, or remove it from, a convenience receptacle.”

The OLRB upheld an MOL inspector’s decision that the receptacle in question, which was used in solar installations, was a “convenience receptacle” and thus a non-electrician could insert the plug into the receptacle.  No special expertise was required in order to effect the connection; there was even an “audible clicking noise” to alert the worker when the connection had been effected.

One expects that the union in this case made a decision to take the case to the OLRB under the provisions of the OHSA’s Construction Regulations, rather than advance the case by a grievance under the collective agreement.  One also expects that the MOL would prefer that its inspectors not be turned into adjudicators of work-assignment disputes that are presented as safety issues.

Whether or not the practice of advancing work assignment disputes under safety legislation is part of a “trend” is not certain, but construction-industry employers in particular should watch this caselaw with interest.  Stay tuned to occupationalhealthandsafetylaw.com for updates.

IBEW Local 530 v. Gil & Sons Limited: http://www.canlii.org/en/on/onlrb/doc/2012/2012canlii17123/2012canlii17123.html

The Ontario Workplace Safety and Insurance Board has announced staff reductions.  The WSIB said on March 21st, 2012 that approximately 129 staff are affected and that more than 100 additional employees elected to voluntarily leave the WSIB.

On its website, the WSIB states that,

“This is part of a long-term business strategy to transform the WSIB into a more effective and efficient organization and to enhance service levels to Ontario’s workers and employers. The WSIB has launched a number of self-serve, eServices and automation improvements in the last two years and more are being implemented in the future. These tools make it easier to transact business with the WSIB and require fewer employees to perform manual tasks and administrative work.

“The WSIB’s current efforts are focused on improving service as well as being fiscally responsible. Along with automation and process improvements, outsourcing certain functions will help the WSIB stay current with modern business practices while allowing WSIB employees to focus on supporting its core business.”

 The WSIB states that it faces an unfunded liability of approximately $12 billion dollars, which is a huge number.  A recent report by the CD Howe institute says that, “Were the WSIB to discount benefit liabilities at a rate that better reflected the cost of guaranteeing benefits, it would report an unfunded liability about $7.4 billion higher, at $19.7 billion . . .” 

The U.S. Occupational Safety & Health Administration has warned U.S. employers that some safety incentive programs might discourage workers from reporting injuries, and therefore might “discriminate” against workers who wish to exercise their legal right to report injuries to their employer.

OSHA notes:

“For example, an employer might enter all employees who have not been injured in the previous year in a drawing to win a prize, or a team of employees might be awarded a bonus if no one from the team is injured over some period of time. Such programs might be well-intentioned efforts by employers to encourage their workers to use safe practices. However, there are better ways to encourage safe work practices, such as incentives that promote worker participation in safety-related activities, such as identifying hazards or participating in investigations of injuries, incidents or ‘near misses’.”

OSHA’s pronouncement on safety incentives does not legally apply to employers in Ontario.  However, Ontario employers should consider whether their safety incentive programs could discourage employees from reporting injuries to the employer and/or to the Workplace Safety and Insurance Board (resulting in potential issues for the employer with the WSIB) or could lead to a reprisal complaint under the Ontario Occupational Health and Safety Act (“I lost my safety bonus because I reported a safety incident to my employer”).

OSHA, “Employer Safety Incentive and Disincentive Policies and Practices”: http://www.osha.gov/as/opa/whistleblowermemo.html

An Ontario arbitrator has held that an ambulance attendant was entitled to be accommodated by the employer, by permitting him to “ride 3rd” in an ambulance despite a potential but not actual risk to his safety.

The ambulance attendant had been injured when he stumbled on a step at a patient’s location.  A physician medically cleared him to return to work, with the only restriction being that he could not lift more than 40 lbs.  The employee asked to be temporarily accommodated by having him be the third crew member in an ambulance in order to allow “gradual re-integration and maintenance of his ACP paramedic skills”; the employee and employer both agreed that a third crew member is not generally required in an ambulance.

The employer argued that it would be unsafe for the employee to work as a third crew member in an ambulance, due to the fact that the employee had remaining lifting restrictions.  The employer offered to accommodate the employee in “other modified duties” until he was “cleared 100% to return to regular duties”.  The employer referred to its obligation to protect the safety of workers under the Occupational Health and Safety Act.  The employer pointed to the risk of confrontations with “un-cooperative or mentally challenged, or disoriented” patients as one risk that an injured employee would face on ambulance duty.

The arbitrator held that the safety risks identified by the employer were inherent in the work of a paramedic, and that the specific safety risks to the employee were speculative and potential – not actual – safety risks.  The arbitrator held that the employer was required, under the Human Rights Code, to accommodate the grievor by allowing him to “ride 3rd” in the ambulance.

Interestingly, the arbitrator noted that an employee with a disability should be permitted to “assume risk” in order to be accommodated in the workplace.  According to the arbitrator, the employer is not permitted to refuse to accommodate solely because there is some risk to the employee from returning to work.

Brant (Country) v. OPSEU, Local 256, 2102 CarswellOnt 2856

Employers who deal with Ontario Ministry of Labour inspectors may wish to review the Ontario government’s Regulator’s Code of Practice.  That Code applies to MOL inspectors and other government compliance staff, and sets out principles that the inspectors and other compliance staff are expected to follow.

Interestingly, the Code states that government inspectors should be “compliance-focused” rather than “enforcement-focused”, which in the context of MOL inspectors, appears to mean focused on helping employers maintain a safe working environment rather than focused on laying charges against employers under the Occupational Health and Safety Act.

The Code states that a compliance-focus requires the inspector to “focus on the objectives of regulatory law and policy and then consider the most innovative, efficient and effective method of achieving compliance.”

In an apparent recognition of the challenging economic climate for many Ontario employers, particularly those in the manufacturing industry, the Code states that government inspectors and regulators should do their jobs in a way that “allows businesses to better focus on increasing competitiveness and economic growth while complying with Ontario’s rules and regulations”.

The Code goes on to suggest that government compliance staff, including MOL inspectors, should classify employers into four categories, and treat them as follows: