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“Discussing inappropriate personal matters at work”, aggressive conduct, gets employee fired for cause

An employee on a “last-chance” agreement was fired for cause for his “aggressive, condescending and rude” behaviour including discussing sensitive personal matters at work.

The employee had worked at the company for 28 years as a general clerk at a grocery store.  He had been fired previously and was reinstated at a different store as part of a mediated settlement.  Under the settlement, if he behaved “in an inappropriate manner in the workplace, which would attract a disciplinary response”, he would be subject to discharge.

Shortly afterwards, two teenage coworkers filed complaints about the employee, alleging harassing and bullying behaviour.  The arbitrator considered the complaints and found that the employee “is a very aggressive person and does not back away from strongly asserting his views”.  He had been aggressive, condescending and rude towards those employees.

The arbitrator then stated, “That brings us to a particularly serious allegation about Mr. Tamelin discussing inappropriate personal matters at work.”  According to one witness the employee had been “talking about his personal life with his past relationships, wives, going on about them in a very negative way, actually swearing about the, uncomfortable for me and for any customer.  Didn’t want to add into the conversation.  Also talking about the United States and his political views.”  He had used offensive terms to describe his past wife.

The arbitrator ruled that the employee had “acted very inappropriately” towards the two teenage employees.  He had not been provoked by them.  As such, the employer had cause for discipline.  Given the “last chance” clause in the settlement agreement, discharge was appropriate.

Overwaitea Food Group v United Food and Commercial Workers Union, Local 1518, 2015 CanLII 49536 (BC LA)

 

“Discussing inappropriate personal matters at work”, aggressive conduct, gets employee fired for cause

Arbitration board imposes 24-hour firefighter shift, despite employer’s safety concerns

An interest arbitration board has imposed a 24-hour shift for firefighters employed by the Ontario City of St. Catharines, despite the city’s strenuous objections based largely on safety concerns.

The City and firefighters’ union had resolved all terms of their collective agreement except whether there should be 24-hour shifts and one other issue.  The union wanted the 24-hour shifts and the City wished to maintain its current shift schedule (10 hour day shifts and 14 hour night shifts).

The City called an expert on sleep medicine and disorders.  The expert focused on the dangers of sleep deprivation and fatigue. His opinion was that the current “10/14” shift schedule was substantially safer than a 24-hour schedule.  The evidence, however, was that over 82% of firefighters in Ontario, from “services of all sizes”, have “adopted and/or adapted to the 24-hour shift”, and 70% of firefighters in the United States.  A number of other Ontario cities, including Toronto, used 24-hour shifts which had been “freely bargained”.

The arbitration board noted that the expert’s evidence was largely based on the experience of other professions such as medical interns, who often got very little sleep during their 24-hour shift.  In contrast, firefighters in St. Catharines had gotten uninterrupted sleep during 80% of their night shifts.  Further, the evidence suggested that it would be rare that a firefighter would not get any sleep during a 24-hour shift.  There was also no evidence of any allegations that the 24-hour shift was a cause or contributing factor in any harm occurring, “even in the litigious U.S.A.”   Further, the Ontario Fire Prevention and Protection Act permitted 24-hour shifts, suggesting that the Legislature has accepted that the 24-hour shift did not present undue health and safety risks.

In summary, the evidence did not establish that there was an unacceptable safety risk to anyone that could not be addressed if a 24-hour shift was implemented.  Given the principles of “replication and comparability”, and given the wide use of the 24-hour shift in other cities, the arbitration board ordered the parties to convene a “joint committee” to “determine the best formulation” for the implementation of a 24-hour shift for a two-year trial period.

The Corporation of the City of St. Catharines v. The Catharines Professional Fire Fighters’ Association, 2014 CanLII 93716 (ON LA)

Arbitration board imposes 24-hour firefighter shift, despite employer’s safety concerns

U.S. construction companies and manager face fines of nearly $2 million for exposing workers to asbestos

The U.S. Occupational Safety and Health Administration (OHSA) has cited a construction company and its manager for asbestos-related violations and imposed fines of almost $2 million.  Safety regulators are increasingly taking asbestos violations very seriously.

OSHA inspectors determined that the company and some of its supervisors told employees to remove asbestos-containing materials during renovation of a school. Many of the employees were temporary foreign workers whose first language was not English. OSHA’s investigation also found that management threatened some workers with termination if they spoke with OSHA inspectors.

Further, OSHA inspectors found that the manager and the companies failed to warn employees of the danger, even though they were aware of the asbestos hazard.  Further, they did not ensure that the workers used appropriate work methods and respirators, and did not train them on the hazards of working around asbestos.

The company and manager had 15 days to appeal to the independent Occupational Safety and Health Review Commission.

OSHA’s News Release can be accessed here.

 

U.S. construction companies and manager face fines of nearly $2 million for exposing workers to asbestos

Two superintendents fined for OHSA violations in scissor lift fatality

Two superintendents have been found guilty of offences under Ontario’s Occupational Health and Safety Act and fined $4,000 each after a worker died when a scissor lift was knocked over by a garage door.

The accident happened when a mechanic pushed a cart through an open garage door, triggering an electric eye mechanism that caused the door to open and strike the scissor lift, knocking it over, as the door moved along its track.  The workers had been insulating an overhead water pipe and were tied-off to the scissor lift platform.  Both workers on the scissor lift fell 20 feet to the floor below. One of those workers died and the other suffered broken bones.

The superintendents were on the jobsite at the time of the accident and supervising the task of insulating the overhead water pipe.  They had not ensured that the lockout procedure of the Toronto Transit Commission (where the work was being done) had been followed, contrary to their employer’s contract with the TTC.

The court found the two superintendents guilty of failing to take every precaution reasonable in the circumstances for the protection of a worker, contrary to section 27(2)(c) of the Occupational Health and Safety Act.  Specifically, they failed to take the reasonable precaution of ensuring that an overhead garage door could not contact an elevated work platform upon which two workers were working.

The superintendents’ employer was also convicted of OHSA offences and fined $125,000.

The Ministry of Labour’s press release can be found here.

Two superintendents fined for OHSA violations in scissor lift fatality

Employee guilty of “reckless” speeding in mine trolley: dismissal upheld

Unsafe operation of equipment is an easy way to get dismissed or charged with Occupational Health and Safety Act – or sometimes even criminal – offences.  A labour arbitrator has upheld the dismissal of a mining employee for driving a trolley at excessive speeds in a mine, causing a derailment and significant damage, costing the company more than $100,000.00.

The trolley was used underground to transport ore cars loaded with “muck” ore or waste to “dumps”.  The trolley weighed 20 tonnes.  The arbitrator found that the speed of the trolley was under the employee’s control.  The evidence was that the track was in good condition.  The arbitrator found that the train was traveling “well in excess” of the maximum allowable speed of 12 km/hr when the derailment occurred, and probably at least 19 km/hr.  The 12 km/hr maximum was set by the Mines and Mining Plants regulation under the Ontario Occupational Health and Safety Act. 

The employee was therefore guilty of operating the train at excessive speed, which constituted reckless conduct.  The employee had short service. He had other safety-related discipline on his record.  His reckless operation of the train could have caused serious personal injury or death.  He refused to accept responsibility, offer an apology or display remorse.

The arbitrator noted that the “underground mine environment is a dangerous and extremely safety-sensitive one”.  It was appropriate, in the circumstances, to discharge the employee.

Sudbury Integrated Nickel Operations v Sudbury Mine, Mill & Smelter Workers’ Union Unifor, Local 598, 2015 CanLII 32018 (ON LA)

Employee guilty of “reckless” speeding in mine trolley: dismissal upheld

“Zero tolerance” policy on drugs in workplace upheld by human rights tribunal where employee did not have “marijuana card”

An employee who smoked marijuana on the job without legal and medical authorization was not discriminated against when dismissed under his employer’s “zero tolerance” policy, the British Columbia Human Rights Tribunal has held.

The employer was a logging contractor.  The employee operated a “button top” machine, which resembled an excavator, used for gripping logs. He had been diagnosed with cancer some years ago and smoked marijuana to, he claimed, manage pain.  He and a coworker shared six to eight joints a day.  They smoked at work only when the foreman was not present.

The employer had a policy of “zero tolerance for drugs on the work site”.  The employer gave the employee a letter stating that “if you can’t stop taking drugs on the work site” and don’t attend at work, then the employee would be considered to have quit.  The Human Rights Tribunal decided that this was effectively a dismissal.

The employer noted Regulation 4.20 of the B.C. Occupational Health and Safety Regulation which provides:

“(1) A person must not enter or remain at any workplace while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else.

(2) The employer must not knowingly permit a person to remain at any workplace while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else.”

The Human Rights Tribunal stated, “Safety is the purpose of the zero tolerance policy, and this is clearly rationally connected to the performance of the job, namely operating heaving equipment in the logging industry.”  The Tribunal noted, however, that strict application of a zero-tolerance rule, without consideration of accommodation of the employee’s disability (addiction), may offend the Human Rights Code where the employee has a “marijuana card” (Health Canada authorization to possess marijuana) and is legitimately using marijuana for medical purposes.

Here, the employee did not have a prescription, medical document or marijuana card and did not inform the employer that he was using an impairing or potentially impairing substance in the workplace.  It was incumbent upon him to have already obtained legal and medical authorization and to inform his employer that he would be legitimately using marijuana, and only as medically allowed.  He did not do so.

In summary, the Human Rights Code did not require the employer to accommodate the employee by permitting him to smoke marijuana in the workplace without legal and medical authorization.  “It transgressed the bounds of reasonable accommodation and would have amounted to an undue hardship.” The employee’s human rights complaint was therefore dismissed.

French v. Selkin Logging, 2015 BCHRT 101 (CanLII)

“Zero tolerance” policy on drugs in workplace upheld by human rights tribunal where employee did not have “marijuana card”

MOL engineer not qualified to give expert evidence: he was too involved in the investigation, too closely identified with prosecution at trial

An Ontario judge has refused to permit a professional engineer employed with the Ontario Ministry of Labour to testify as an expert in a health and safety prosecution.

A company was charged under the Occupational Health and Safety Act after a drill rig tipped over on a construction site, causing one death and one serious injury.  The cause of the accident was key to the case.

The MOL engineer had prepared a report in which he explored all of the possible causes from an engineering perspective.  He concluded the report with his own opinion as to the root cause of the accident.

The judge held that the MOL engineer was “inextricably bound up with the investigation of this case”.  He was the first person on the scene of the accident along with the MOL’s lead investigator.  He had been closely involved in the MOL’s investigation throughout.  At each point in the MOL’s investigation, the engineer had been performing at least two roles: (1) he was himself investigating directly by his observations, and (2) he was assisting the investigators by being the contact person with the technical knowledge beyond the expertise of the lead MOL investigator.

The judge noted that being an MOL employee did not disqualify the engineer from offering an expert opinion.

However, his extensive involvement in the investigation that led to the MOL laying the Occupational Health and Safety Act charges, and his enthusiastic identification with the prosecution during the trial, led the judge to conclude that the engineer could not give an unbiased opinion on the root cause of the collapse of the drilling rig.  As such, the court refused to qualify the MOL engineer to give expert evidence at trial.

The Ministry of Labour in Right of the Province of Ontario v. Advanced Construction Techniques Ltd. (Justice B. Knazan, April 21, 2015)

MOL engineer not qualified to give expert evidence: he was too involved in the investigation, too closely identified with prosecution at trial

FOI adjudicator denies access to MOL inspector’s reasons for recommending no OHSA charges against employer

An adjudicator with the office of Ontario’s Information and Privacy Commissioner has denied access to a Ministry of Labour inspector’s reasons for recommending that Occupational Health and Safety Act charges not be laid against an employer after a fatal motor vehicle accident involving the death of eleven people including migrant workers.

The requester wanted a copy of the Ministry of Labour’s “employment safety investigation report”.  The MOL granted “partial access”, apparently handing over some parts of the investigation report but not the factors and considerations that went into the inspector’s recommendation that OHSA charges not be laid.

The requester argued that the public interest in safety, and the need to subject MOL enforcement and decisions to public scrutiny, required that the factors and considerations be made public.

The adjudicator refused to grant access to the factors and considerations that went into the inspector’s decision not to recommend OHSA charges.  Instead, the information fell squarely within the exemption in section 13(1) of the Freedom of Information and Protection of Privacy Act which provides that advice or recommendations of a public servant need not be disclosed.  The public interest did not require disclosure.  In fact, the public interest suggested that the information not be disclosed, because otherwise Ministry of Labour inspectors may feel constrained in providing full, free and frank advice.

Ontario (Labour) (Re), 2015 CanLII 31652 (ON IPC)

 

 

FOI adjudicator denies access to MOL inspector’s reasons for recommending no OHSA charges against employer

“Ill-conceived, poorly-executed” job search, “Alberta sojourn” breached Ontario employee’s duty to mitigate damages in OHSA-retaliation case

Even though an employee “won” his safety-retaliation case under the Occupational Health and Safety Act after his employer failed to file a Response, the employee’s damages were reduced because his job search was shoddy.

After initially trying to find a job around his father’s Ontario home, where he could live rent-free, he “decided to abandon Ontario for an unspecified and illusory opportunity in Calgary” which, evidently, did not come through.

The Ontario Labour Relations Board stated:

“In the result, I am of the view that Stringer did not demonstrate that he acted reasonably in his job search by leaving Ontario for Alberta and after his arrival there.  While the responding party bears the onus of establishing a want of mitigation, the Board cannot ignore the approach taken and effort expended by the applicant in determining the period for which he might be compensated in a proceeding such as this.  To put the matter starkly, if a person such as the applicant did nothing at all to attempt to find work and simply argued that the employer was required to prove that by doing nothing the individual had passed up specific opportunities, the Board would, in my view, be justified in concluding that the onus on the employer did not arise and the individual would be restricted to a nominal level of compensation.  So too, where there is evidence of the person’s making some attempt to obtain other employment, but the approach taken was ill‑conceived, poorly executed, or unsupported by a logical factual basis, the Board should hesitate to conclude that the applicant has made reasonable efforts to mitigate and should reflect that concern in its decision with regard to lost wages.  The applicant is not to be held to a standard of perfection, but, as the Board held in Adams v. W.E. Hall & Sons Company, supra, the applicant’s entitlement to compensation is dependent upon his satisfying the Board that he made “reasonable efforts to mitigate [his] damages”.

Although the employee requested 30 weeks’ pay as damages, the OLRB decided that that would compensate him for the period of his “Alberta sojourn”, which would not be appropriate.  In the end, the OLRB decided that he was entitled to 17 weeks’ lost wages.

Stringer v Grand Tappattoo Resort, 2015 CanLII 26124 (ON LRB)

“Ill-conceived, poorly-executed” job search, “Alberta sojourn” breached Ontario employee’s duty to mitigate damages in OHSA-retaliation case

Labour arbitrator agrees to hear harassment-retaliation grievance under OHSA

Although a temporary employee had no termination protection under the collective agreement, he did have the right to advance a reprisal / retaliation claim under the Occupational Health and Safety Act, a labour arbitrator has ruled.

Two months after starting, the employee filed a harassment / bullying complaint.  His employment was terminated three months later for having made threats of violence.

The arbitrator held that temporary employees had no protection, under the collective agreement, from termination of employment or harassment.  In fact, the union could not rely on any of the provisions of the collective agreement to advance the employee’s claim.

The arbitrator decided, however, that he had authority to decide whether the employer had violated section 50 (retaliation for raising safety issues) of the Occupational Health and Safety Act.  Although the arbitrator stated that, “Apart from section 50, nothing in the OHSA makes employers answerable for workplace harassment”, here the arbitrator had authority to determine whether the employee had been fired in retaliation for him raising issues that qualified as safety issues under the OHSA. The grievance could therefore continue but only on the harassment-retaliation complaint under the OHSA.

Cambrian College of Applied Arts and Technology v Ontario Public Service Employees Union, 2015 CanLII 32501 (ON LA)

Labour arbitrator agrees to hear harassment-retaliation grievance under OHSA

Employer permitted to use “cumbersome” two-page sick leave medical form implemented after STD costs increase, arbitrator rules

An employer’s introduction of a new two-page sick leave medical form did not violate the collective agreement, a labour arbitrator has held.

The employer introduced the form in response to the increasing costs of short-term disability claims and absences.  The new policy required that for absences greater than two days, the employee must ask his or her physician to fill out a two-page medical form.  The form did not seek information regarding a diagnosis but did ask the physician to indicate the date of the injury, whether it was work-related or not, whether it had been reported to the Workplace Safety and Insurance Board, and if the injury was work-related, whether it was recurring.  It also asked the physician to indicate any physical or cognitive limitations as well as the expected duration of those limitations and the expected return-to-work date.

The union argued that the medical form was simply too cumbersome and bureaucratic.  The employer noted that in simple cases, the physician did not need to fill out the entire form, and there were no repercussions to employees where the physician refsed to fill out all or part of the form.

The arbitrator decided that the employer did have the right to the information in the form.  Also, given the increasing cost of STD claims, it was reasonable for the employer to seek additional information that could encourage earlier returns to work.  Although the form may be cumbersome, particularly for simple illnesses such as the flu, there was no information in the form to which the employer was not entitled.  The employer was within its rights to implement the new medical form.

United Steelworkers Local 7175 v Veyance Technologies Canada Inc, 2015 CanLII 30713 (ON LA)

Employer permitted to use “cumbersome” two-page sick leave medical form implemented after STD costs increase, arbitrator rules

Arbitrator strikes down employer’s total ban on smoking during shift

An employer went too far when it banned smoking by employees during their shift, including during breaks and off the employer’s premises, a labour arbitrator has ruled.

Starting in January 2015, the employer – which manufactured wire and cable products – banned smoking anywhere on company property, including outside of the plant.  Employees were also prohibited from leaving company property during their breaks, so that effectively employees could not smoke during their shift.

The union filed a grievance against the ban.  The arbitrator agreed that the employer had the right to prohibit smoking on its property.  He acknowledged that smoking is harmful to smokers, their colleagues, and the employer generally.  However, smoking is still a legal activity in Ontario and the employer could not, according to the arbitrator, prohibit employees from smoking off company property during their break, even though employees were paid during their break.

Given that it took only a minute or two to leave the plant and exit company property, it was an unreasonable exercise of management rights – and therefore a violation of the collective agreement – for the employer to prohibit employees from smoking off property during break time.

It is important to note that this decision is based on labour relations law.  The same result would not necessarily apply in a non-unionized setting.  In those workplaces, employees would need to assert that the smoking ban was discriminatory under human rights legislation based on a disability (addiction).

United Steelworkers Local 7175 v Veyance Technoligies Canada Inc, 2015 CanLII 30713 (ON LA)

 

 

Arbitrator strikes down employer’s total ban on smoking during shift

Project Manager for Metron Construction convicted of criminal negligence in Christmas Eve fatalities. Three individuals and two companies now convicted

The project manager who supervised the four workers who died after a swing stage scaffold collapsed on Christmas Eve, 2009, has been found guilty on four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm.  Vadim Kazenelson received the verdict today.

The court has not yet imposed his sentence.

Five parties have now been found guilty of safety-related offences as a result of this tragic accident: Metron Construction Corporation, a director of Metron, Swing N Scaff Inc., a director of Swing N Scaff Inc. (all of which received fines), and Mr. Kazenelson.

As we previously reported, the total of safety fines imposed for the December 24, 2009 swing stage collapse fatalities is $1,240,000.

According to the Ministry of Labour, at least six workers were on the swing stage suspended 13 floors above the ground when it broke apart in the middle and collapsed. Ministry of Labour investigators found that the welds on the platform were inadequate. Tragically, four workers died.

Swing N Scaff Inc., the company that supplied the swing stage platform (a suspended work platform), had previously pleaded guilty to the Occupational Health and Safety Act offence of failing to ensure that a suspended platform and/or a component supplied to Metron Construction Corporation was in good condition.  It was fined $350,000.00.

The director of Swing N Scaff Inc. had previously pleaded guilty to failing to take all reasonable care to ensure a suspended platform was in good condition and that a platform weighing more than 525 kilograms was designed by a professional engineer in accordance with good engineering practice.  He was fined $50,000.00 under the Ontario Occupational Health and Safety Act.

Previously, Metron Construction Corporation was fined $750,000.00 for criminal negligence under the “Bill C-45″ amendments to the Criminal Code; that amount was increased on appeal from the $200,000.00 fine set by the trial justice.

A director of Metron Construction Corporation was previously fined $90,000.00 under the Ontario Occupational Health and Safety Act for failing to ensure that non-English speaking workers received written material in their native languages and failing to ensure that training records were maintained; failing to ensure that the swing stage was not defective or hazardous (by allowing it to be used without having received any of the required information with respect to its capacity and use); and failing to ensure that the swing stage was not loaded in excess of the load that the platform was designed and constructed to bear.

Project Manager for Metron Construction convicted of criminal negligence in Christmas Eve fatalities. Three individuals and two companies now convicted

“Creative sentence” imposed for OHSA violation: company must give 150 hours of safety presentations on case, plus pay fine

A Nova Scotia court has imposed a “creative sentence” for a violation of the Occupational Health and Safety Act, requiring the company to make safety presentations in addition to paying a fine.

A journeyman electrician employed by the company was electrocuted when he made a “tragic, fatal miscalculation”, deciding to work on an energized system.  The company was found guilty of failing to institute any policies or practices that addressed workplace safety, but instead relying exclusively on the employee being an experienced and safety-conscious electrician.  Further, the company did nothing to ensure compliance with the Canadian Electrical Code.

The Nova Scotia Occupational Health and Safety Act allows for fines and “creative sentencing options” for violations.  The court imposed a fine of $35,000.00 on the company, acknowledging that the company was very small and was now insolvent and no longer operating.

In imposing a “creative sentence option”, the court noted that the electrician’s death and the lack of formal safety policies at the company “constitute a sobering message for other small businesses in the construction trades.”  The court decided to impose a “community service order” requiring the company to make a series of presentations on the facts of the case as indicated in the trial decision, the applicable regulatory requirements, the workplace safety issues involved, and the required due diligence. The presentations must total 150 hours and be completed in 18 months.

While Nova Scotia’s Occupational Health and Safety Act permits such “creative sentencing options”, other provinces such as Ontario do not.  While at the same time recognizing the obvious tragedy of the death, one can see that the reputational damage associated with a conviction in such a case, and 150 hours of presentations that recite the sad facts, is obvious.  In Ontario and a number of other provinces, the government prosecutors often issue press releases that identify the company, the violation and the amount of the fine.

R. v. R.D. Longard Services Limited, 2015 NSPC 35 (CanLII)

 

“Creative sentence” imposed for OHSA violation: company must give 150 hours of safety presentations on case, plus pay fine

Another lesson about clarity in settlements: employer may file WSIB appeal after mediated settlement, despite union’s objection

An employer’s appeal challenging a departed employee’s workers’ compensation entitlements may proceed, despite being filed after the employer, union and employee reached a settlement at mediation.

The union had filed earlier grievances relating to the employee’s health and safety and her dismissal.  The union, employer and employee settled the grievances  at mediation and signed Minutes of Settlement under which the employee resigned.

After the Minutes of Settlement were signed, the employer filed an appeal challenging the worker’s entitlement to Workplace Safety and Insurance Board loss of earnings benefits relating to an earlier workplace injury.  The union claimed that that appeal breached the Minutes of Settlement.   The dispute went in front of an adjudicator with the Grievance Settlement Board.

The adjudicator noted that the Minutes of Settlement settled all issues relating to the employee’s employment and the termination of her employment.  However, the employer had not released any of its rights whatsoever.  Importantly, paragraph 9 of the Minutes of Settlement prohibited the employee from pursuing reinstatement and reemployment but went on to state, “this paragraph is without prejudice to the parties’ position with respect to any other matter under the” Workplace Safety and Insurance Act.

The adjudicator decided that although when the Minutes of Settlement were signed, the employee was receiving loss of earnings benefits under the Workplace Safety and Insurance Act, there was no guarantee in the Minutes of Settlement that she would continue to do so.  As such, the employer’s WSIB appeal did not breach the Minutes of Settlement.

Ontario Public Service Employees Union (Robbescheuten) v Ontario (Community Safety and Correctional Services), 2015 CanLII 32419 (ON GSB)

Another lesson about clarity in settlements: employer may file WSIB appeal after mediated settlement, despite union’s objection

U.S. OSHA and Health Canada continue “partnership” to coordinate labelling and classification of hazardous chemicals, implement GHS

Health Canada and the U.S. Occupational Safety and Health Administration (OSHA) have announced that they will “continue their partnership” to “align United States and Canadian regulatory approaches regarding labelling and classification requirements for workplace chemicals through the Regulatory Cooperation Council.”

In 2013, Health Canada and OSHA signed a Memorandum of Understanding to promote ongoing collaboration on implementing the Globally Harmonized System of Classification and Labelling (GHS) in both countries.  Countries around the world are adopting GHS, which provides a consistent international system for chemical classification and labelling.

OSHA and Health Canada say that they intend to reduce inconsistencies among hazard communication regulations and to provide concise information to protect workers exposed to hazardous chemicals.  The two countries intend to implement a system allowing the use of one label and one safety data sheet that would be compliant in both countries.

In February 2015, the Government of Canada published in the Canada Gazette, Part II the Hazardous Products Regulations (HPR) which modified the Workplace Hazardous Materials Information System (WHMIS) 1988 to incorporate GHS.

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

For further information on the transition, in Canada, to WHMIS 2015, click here.

U.S. OSHA and Health Canada continue “partnership” to coordinate labelling and classification of hazardous chemicals, implement GHS

Ontario Bill will increase fines for Workplace Safety & Insurance Act violations

The Ontario government has introduced legislation that will, among other things, quintuple the maximum fine against corporations for violating the Workplace Safety & Insurance Act, Ontario’s workers’ compensation act.

The Employment and Labour Statute Law Amendment Act, 2015 will, if passed, amend the Workplace Safety & Insurance Act to:

  • Increase the maximum fine for companies that violate the Workplace Safety & Insurance Act from $100,000 to $500,000 (including for offences such as knowingly making a false or misleading statement to the WSIB)
  • Make it illegal for employers to try to prevent workers from – or punish them for –  reporting a workplace injury or illness to the WSIB
  • Allow WSIB survivor benefits to be calculated based on the average earnings, at the time of diagnosis, of the deceased worker’s occupation rather than the current legislated minimum

The $500,000 maximum fine will equal the maximum fine for violations of the Ontario Occupational Health and Safety Act.  After the Bill has been passed, we will need to wait for some court decisions to see whether judges and justices of the peace hand down larger fines.

Unlike OHSA fines, which tend to result from serious workplace injuries, WSIA fines are typically for violations such as failing to register with the WSIB when required, failing to report a worker’s injury to the WSIB, or providing false information to the WSIB.  The WSIB’s conviction reports show that recent fines against corporations under the Workplace Safety & Insurance Act have been in the range of $2,500 to $25,000.

A press release from the Ontario government announcing the changes can be found here.

 

Ontario Bill will increase fines for Workplace Safety & Insurance Act violations

Cost of compliance with safety officer’s order could cause serious economic harm to company: Appeals Tribunal

A safety officer’s compliance order has been suspended where the cost of compliance would be so high that it could cause serious economic harm to the company.

The company performed stevedoring and terminal handling of containers at the Port of Montreal.  It employed “checkers” who used Toyota Echo and Yaris cars to move about the Port coordinating work.  A federal health and safety officer decided that the lighting levels of two terminals at the Port were below the prescribed standards.  She issued a direction requiring the employer to end the violation and increase lighting levels.
The company appealed and applied for a suspension of the direction.  The company presented evidence that in order to comply with the direction, it would need to install 10 new “lighting towers” at a total cost of at least $2 million.  The company also noted that it was impossible to install new lampposts by the compliance deadline because it was winter and the ground was frozen.

The federal Occupational Health and Safety Tribunal Canada decided that the direction should be suspended pending the outcome of the appeal. Firstly, there was a serious legal issue as to whether the direction was legally correct. Secondly, the company would suffer serious harm if the direction was not suspended.  First, it appeared impossible to comply with the direction, by the deadline, given the weather conditions and engineering work involved.  The company could suffer serious economic harm that could threaten the company’s viability, given the cost of compliance.  Further, the inspector took 9 months, after her inspection, to issue the direction, suggesting that the lighting levels did not pose a serious hazard.  Thirdly, the company was willing to put additional safety measures in place – including painting the cars a different colour, installing an LED light at the tip of the flag on the car, and adding lights to the checkers’ safety vests – that adequately protected the checkers.

The Tribunal agreed to suspend the direction on the condition that the company takes action, immediately, to put into place the additional safety measures.

Termont Montréal Inc. v. Syndicat des Débardeurs, ILA Local 375 and Syndicat des Vérificateurs, ILA Local 1657, 2015 OHSTC 7 (CanLII)

Cost of compliance with safety officer’s order could cause serious economic harm to company: Appeals Tribunal

Dentons’ Spring Employment Seminar Includes OHS Caselaw Highlights – June 5th

Please join us for a complimentary half-day employment law seminar in Toronto on Friday, June 5th. We will cover the following topics:

We are particularly delighted to welcome our special guest speakers The Honourable  K. Kellie Leitch, P.C., M.P., Minister of Labour and Minister of Status of Women, and Chantal Bernier, former Interim Privacy Commissioner of Canada.

Date & Time
Friday, June 5, 2015
Registration and breakfast:  8:30-9:00 a.m.
Welcome remarks and special guest speaker Chantal Bernier:  9:00-9:30 a.m.
Breakout sessions:  9:30-11:45 a.m.
Lunch and special guest speaker Scott Armstrong:  11:45 a.m.
Program ends: 1:00 pm

Location
Dentons Canada LLP
77 King Street West
5th Floor
Toronto, ON

For more information and to RSVP for this event visit our registration page.

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Please contact toronto.events@dentons.com for any questions.

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Former Safety Manager Charged in U.S. Workplace Death

A former Safety Manager in California is among those charged with “willfully violating worker safety rules”, allegedly causing the death of a worker.

The former Safety Manager and the Director of Plant Operations of Bumble Bee Foods LLC, and the company itself, were charged “with three felony counts each of an Occupational Safety & Health Administration (OSHA) violation causing death.”

A news release by the Los Angeles County District Attorney states:

“Prosecutors said on Oct. 11, 2012, victim Jose Melena, 62, of Wilmington, entered a 35-foot-long cylindrical oven as part of his job duties at Bumble Bee’s Santa Fe Springs plant. The oven is used to sterilize cans of tuna.

“Coworkers were unaware that Melena was inside the oven when they loaded multiple carts, collectively containing about 12,000 pounds of tuna, closed the front door and started the oven. The victim inadvertently became trapped in the back of the super-heated, pressurized steam cooker.

“During the two-hour heat sterilization process, the oven’s internal temperature rose to about 270 degrees. Melena’s severely burned remains were discovered by a coworker, prosecutors said. Melena worked for the company for about six years.”

The charges against the former Safety Manager and the Director of Plant Operations carry a possible jail term of three years and/or a fine of $250,000.00.  The company faces a fine of up to $1.5 million if convicted.

Charges against safety professionals are quite rare.  As we noted in a previous post, in 2011 an Occupational Health and Safety Co-ordinator was found guilty of a violation of Nova Scotia’s Occupational Health and Safety Act for neglecting to follow up with his employer on recommendations in an asbestos report.

The Los Angeles County District Attorney’s news release may be found here.

Former Safety Manager Charged in U.S. Workplace Death