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Court considers safety, fatigue of replacement workers in granting picketing injunction

A British Columbia judge has considered an employer’s concerns for the safety of replacement workers, in granting an injunction against picketing workers.

The employer and Unifor were in a labour dispute.  Unifor was picketing the employer’s place of business.  In an affidavit submitted on the company’s motion for an injunction, a company manager expressed concern over the safety of the replacement workers due to fatigue:

“In addition to the financial consequences of these increased delays and of greater concern to Cascade are the potential health and safety consequences for CanJet and Trenton personnel. It is very rare that we schedule our production work force for 12 hour days for a significant number of days in a row. The reason this is rare is because of a concern we have for the health and safety of the workers due to fatigue. These workers are repairing complex commercial aircraft and are working with complex tools and equipment. During the course of their duties, they are operating flight controls and doing high-skilled professional work that without due diligence could result in significant damage to the aircraft and/or serious injury to personnel. During the time that the bus is stopped when trying to enter or exit the facility, these personnel cannot simply rest as they are constantly subject to picketers yelling, tapping and scraping their picket signs on the bus and peering through the windows of the bus, sometimes with cameras. I have serious concerns that the number of hours these workers are spending at work and on their way to and from work due to the increased delays in crossing the picket line could lead to exhaustion and a serious work place accident.”

Madam Justice Sharma of the B.C. Supreme Court stated that, “In all the circumstances, I find that there is urgency to this application because of the health and safety concerns of the people working for Cascade.”  She added, “It is clear that Cascade may suffer irreparable harm if the injunction is not granted. I am particularly concerned by the escalation of matters since this matter started.”

The employer was therefore entitled to a temporary injunction prohibiting the union members from “blocking, hindering, delaying or obstructing”.

Cascade Aerospace Inc. v. Unifor (Local 114), 2014 BCSC 1461 (CanLII)

Court considers safety, fatigue of replacement workers in granting picketing injunction

“An employee does not necessarily get one free sexual harassment before he loses his job”, says arbitrator in upholding dismissal for Facebook harassment, threats

An arbitrator has upheld the dismissal of a unionized employee for one incident of sexual harassment and threats on Facebook.

After an incident at work in which the grievor was displeased with “X”, a female co-worker, the grievor went home and complained about X on Facebook. Although he did not identify X by name, he referred to what the arbitrator called a “distinctive personal characteristic” of X.  Another co-worker posted a comment on Facebook that suggested performing a physically aggressive act with X’s physical characteristic.  The grievor agreed with the comment and added a further suggestion on Facebook that a violent and humiliating sex act be performed on X.  He then mentioned a cruel nickname associated with X’s personal characteristic.  From start to finish, the grievor’s Facebook session lasted about 2 hours.

Within a few hours, X found out about the Facebook postings.  She complained to the employer, and explained that she had been teased about the personal characteristic when she was a child and was very sensitive about it.  The company then fired the grievor, finding that his comment referring to X was a reference to a violent and aggressive sexual act that was perceived to be a threat of both sexual and physical assault.

Arbitrator Laura Trachuk upheld the dismissal.  She stated that it would be reasonable for a woman reading the Facebook posts to feel threatened. The grievor had suggested, in those posts, that X be sexually assaulted.  He must have anticipated that X would see the posts because his Facebook “friends” included co-workers.  According to the arbitrator, “Making nasty comments on Facebook is not an acceptable response to frustration with a co-worker.”  The references to X’s personal characteristics could only have been made to hurt her.

In closing, the arbitrator stated that, “Some offences are so serious that they warrant discharge.  An employee does not necessarily get one free sexual harassment before he loses his job.”  The grievor was not a long-term employee and the company could have little confidence that he could be trusted never to harass someone else.

United Steelworkers of America, Local 9548 v Tenaris Algoma Tubes Inc, 2014 CanLII 26445 (ON LA)

“An employee does not necessarily get one free sexual harassment before he loses his job”, says arbitrator in upholding dismissal for Facebook harassment, threats

Ebola Preparedness for Employers: U.S. OSHA Launches Ebola Web Page

The United States Occupational Safety and Health Administration (OSHA) has launched an Ebola Web Page for employers providing information on Ebola and how to protect workers.

OSHA states that workers, including healthcare and airline workers, performing tasks involving close contact with symptomatic individuals with Ebola, or who work in environments contaminated or reasonably anticipated to be contaminated with infectious body fluids, are at risk of exposure.

OSHA’s guidance includes information on hazard recognition, medical information, standards, and control and prevention.

OSHA has also issued a “Fact Sheet” called “Cleaning and Decontamination of Ebola on Surfaces: Guidance for Workers and Employers in Non-Healthcare/Non-Laboratory Settings”.

Here in Canada, Public Health Ontario and the Public Health Agency of Canada have also issued materials and guidance regarding Ebola.

Employers – particularly those whose workers may be at greater risk of exposure to Ebola – should prepare a plan for dealing with Ebola, including the logistics of telecommuting arrangements.  Employers’ obligation under health and safety legislation to take every precaution reasonable in the circumstances for the protection of workers, includes an obligation to take reasonable precautions relating to infectious diseases.

Stay tuned to Occupationalhealthandsafetylaw.com for further workplace-safety updates relating to Ebola.

Ebola Preparedness for Employers: U.S. OSHA Launches Ebola Web Page

Trucker who punched customer in the mouth was fired for cause

One would think it self-evident that employees who punch a customer’s employee in the face may be dismissed for just cause. But it took an appeal for an employer to win on that issue.

The employee was a truck driver with a small, privately-owned trucking company.   While at a customer’s premises, he got agitated at one of the customer’s employees and punched him in the mouth, knocking out one of his teeth.  The employer dismissed the truck driver and refused to pay his Canada Labour Code termination and severance pay.  The employee then filed a claim for those amounts.

Surprisingly, an Inspector under the Canada Labour Code, who was the first-level adjudicator, decided that the employer did not have just cause for dismissal because the company’s “expectations” had not been clear, there had been insufficient supervision to ensure compliance, and there had been no “clear warnings” as to what would happen if the employee engaged in unacceptable conduct.

The employer appealed to a referee, who disagreed with the Inspector.  The one incident, taken on its own, was just cause for dismissal.  The truck driver showed no remorse for his actions, even at the hearing where he said that the customer’s employee deserved what he got.   The appeal referee found that the truck driver had been evasive and dishonest at the appeal hearing.  The referee held that the punch was unprovoked and constituted just cause for dismissal; this meant that the employee was not entitled to termination pay and severance pay under the Canada Labour Code.

Although the employee had a spotty performance record, including a warning for a previous violent incident at a customer’s premises in which he was alleged to have threatened one of his co-workers with a hunting knife, the appeal referee decided that he did not need to rely on the past incidents, given the gravity of the later assault on the customer.

Our posts on other dismissal-for-violence cases can be viewed by clicking on the “Violence and Harassment” category on our occupationalhealthandsafetylaw.com blog.

Warner v Moore Brothers Transport Ltd., 2014 CanLII 54390 (ON LA)

Trucker who punched customer in the mouth was fired for cause

Worker who spread rumour that MOL inspector “paid off” by company, and that company was closing, was fired for cause

A worker who contacted a Ministry of Labour inspector with safety concerns but didn’t get the answer he wanted, and then spread rumours that the MOL inspector had been “paid off” by the company, was dismissed for cause, an Ontario judge has decided.

The company, at the wrongful dismissal trial, denied that it dismissed the employee for complaining about safety issues.  The company instead called evidence about a series of concerns with the employee’s performance, including allowing an unauthorized person to enter a restricted area; permitting three employees to leave work for one hour without punching their time card; approving a full skid of product that had labels missing; winking at a female employee and touching her hand; falling asleep during his shift; failing to wear a required face mask; attempting to engage co-workers against the company; and spreading rumours about the MOL inspector.

With respect to those rumours, three co-workers had signed a statement saying that the employee was spreading rumours that the MOL inspector was a “rat” and had been paid by the company to dismiss his complaints.

Shortly after receiving that signed statement, the company terminated the employee’s employment for creating a “poisoned work environment” and spreading false rumours about the MOL inspector. The company claimed just cause for dismissal.

At trial, the employer said that the MOL inspector had attended and had found no violations of the Occupational Health and Safety Act or that they were minor.

With respect to whether the company had just cause to dismiss the employee, the judge decided that the “cumulative incidents were not minor or trifling. They affected the workplace as a whole”.  The employee had been insubordinate and had attempted to harm the employer, including spreading rumours that the company was closing.  The employee had not been fired in retaliation for raising safety issues.  The company had just cause to dismiss the employee.

Chopra v. Easy Plastic Containers Limited, 2014 ONSC 3666 (CanLII)

Worker who spread rumour that MOL inspector “paid off” by company, and that company was closing, was fired for cause

Alberta Employer Liable for Employee’s Negligent Driving of Company Vehicle – Even Though Employer Told Him Not to Drive It

Alberta employers should heed a recent appeal decision in which an employer was held liable for damage caused by an employee while driving a company vehicle – even though he was told not to drive it.

The employee worked for a roofing company. He was working on a residential roof. The employer gave him access to a company truck and trailer which were parked at the site, but only to access supplies and to keep warm. The employer told him not to drive the truck.

The employee disobeyed the instructions and drove the truck and got into an accident.

Section 187(2) of the Alberta Traffic Safety Act makes the owner of a vehicle liable if, at the time of the accident, the driver was in “possession” of the motor vehicle with the consent of the owner.

The appeal court decided that even though the employee did not have permission to drive the truck, he did have permission to use the truck for supplies and to keep warm. Thus, he was “in possession of” the truck, and the employer was liable for any damages caused by him in the accident. As long as the employee had consent to be in possession of the truck, which he did, the employer was liable.

In light of this decision, employers in Alberta – and across Canada – should review their policies on the use and “possession” of company vehicles. Especially where the employee does not have enough assets to satisfy a court judgment, plaintiff lawyers may seek to have the employer also declared liable.

Mustafi v. All-Pitch Roofing Ltd., 2014 ABCA 265 (CanLII)

Alberta Employer Liable for Employee’s Negligent Driving of Company Vehicle – Even Though Employer Told Him Not to Drive It

Employee Dismissed for Demanding Bonus and Saying that Employer “Could Fire Him”, Not For Raising Safety Concerns, Court Decides

An employee’s demand for a bonus and assertion that his employment relationship would not be “fruitful” and that his employer could fire him, was the reason for his dismissal, a court has decided. The dismissal was not retaliation for raising safety concerns.

The employer did environmental assessment and testing. The employee was a laboratory manager. In December 2009, the employer told him that he would not get a performance bonus because he did not meet the criteria. In early January of 2010, the employer told staff that there was a general slowdown of work.

Early on January 11th, the employee sent an e-mail to the employer complaining about not getting a bonus. He ended the e-mail by saying that he did not think the working relationship would be fruitful in the future, and that if the employer was not satisfied with his productivity, it could fire him. In the same e-mail, he complained that a “hood for bulk sample analysis” should be replaced. Later the same day, the employer did indeed terminate his employment, referring to his “apparent employment dissatisfaction”.

The employee then filed a complaint with the Workers’ Compensation Board of British Columbia, arguing that he had been dismissed in retaliation for raising safety issues, including those mentioned in the e-mail. The Board disagreed, finding that the employee had been dismissed in direct response to the e-mail, and that the e-mail primarily related to his bonus; the termination was unrelated to any occupational health and safety concern.

The employee’s appeal to the Workers’ Compensation Appeals Tribunal was dismissed. The WCAT noted that some of the safety issues raised in the employee’s Board complaint were not in the employee’s e-mail. Although the employee had raised safety concerns earlier – before sending the e-mail – he had not been able to prove any relationship between his raising of those concerns and his dismissal.

The employee then tried to attack the WCAT’s decision in the B.C. Supreme Court. The court found that the WCAT’s decision was based upon the evidence. The decision was upheld.

Despite popular perception, safety-retaliation / reprisal cases are difficult for employees to win in Canada. Where, as in this case, the employer is able to show that there is another reason for the termination, courts and tribunals will often be hesitant to find that the employee was dismissed for raising safety issues.

Goghari v. Saarela, 2014 BCSC 1667 (CanLII)

Employee Dismissed for Demanding Bonus and Saying that Employer “Could Fire Him”, Not For Raising Safety Concerns, Court Decides

B.C. Appeal Court Clarifies Workplace Accident Reporting Obligations

The employer of the injured worker, not the owner of the workplace, was required to report the worker’s injury, the B.C. Court of Appeal has held, in a decision that clarifies employers’ accident reporting obligations.

The worker was injured while working on a powerline owned by British Columbia Hydro and Power Authority. The worker worked for a contractor to B.C. Hydro.

The Workers’ Compensation Board of British Columbia issued an order citing B.C. Hydro for failing to report the accident. The order referred to section 172(1)(a) of the Workers Compensation Act, which provides:

“An employer must immediately notify the Board of the occurrence of any accident that (a) resulted in serious injury to or the death of a worker”.

B.C. Hydro argued that it was not the worker’s “employer”. The Board maintained that the reporting obligation applied to “an employer” – not just the employer of the injured worker. “An employer”, said the Board, should include the owner of the worksite because it had a significant connection to the worksite and was in the best position to provide the timeliest notification to the Board.

The court decided that the Board’s decision was unreasonable. B.C. Hydro was not legally required to report the accident to the Board.  The Act did not impose a duty on owners to report accidents. Further, requiring owners to report accidents under s. 172(1)(a) would effectively require owners to carry out other obligations of “employers” under the Act including investigating the accident, preparing an accident report, and taking corrective actions. The legislature could not have intended to impose all of those obligations on owners.

In conclusion, the worker’s employer was required to report the accident to the Board, but B.C. Hydro was not.

Although the B.C. Court of Appeal did not mention the Ontario Court of Appeal’s recent Blue Mountain Resorts Limited  decision, which dealt with accident reporting obligations in Ontario, both decisions attempt to bring clarity and consistency to the government’s interpretation of accident-reporting requirements.

British Columbia Hydro and Power Authority v. Workers’ Compensation Board of British Columbia, 2014 BCCA 353 (CanLII)

B.C. Appeal Court Clarifies Workplace Accident Reporting Obligations

Despite Having WSIB Coverage, Worker Permitted to Sue “Physically Demonstrative” Executive Officer who “Massaged” her Neck

Physically demonstrative managers beware: your company’s workers compensation coverage does not necessarily protect you from lawsuits by employees.

Even though her employer had Workplace Safety and Insurance Board coverage, an employee was entitled to bring a lawsuit against an executive who “massaged” her neck, allegedly injuring her, Ontario’s Workplace Safety and Insurance Appeals Tribunal has ruled.

However, the Workplace Safety and Insurance Act prohibited her from suing her employer for the neck injuries.

The employee alleged, in her court action, that the executive officer had injured her when he manipulated her head and neck without her consent, thereby committing assault and battery. The worker had a prior neck condition affecting her shoulder.

The executive officer was known to be physically demonstrative and had been warned by the employer’s human resources manager not to touch employees or customers unless it was necessary.

The WSIAT decided that because the employee was in the course of her employment at the time of the injury, she could not sue the employer.

However, she would be permitted to sue the executive in the courts if she could prove that he was not acting in an employment-related capacity when he massaged her neck.

The WSIAT decided, on the facts of this case, that in administering the massage, the executive “deviated substantially from his regular activity as an executive officer”. The conduct had nothing to do with his work duties, which was shown by the warning from the human resource manager. As such, he was not acting in an employment-related capacity when he massaged her neck, and the employee was permitted to sue him in the courts.

Decision No. 727/13, 2014 ONWSIAT 1128 (CanLII)

Despite Having WSIB Coverage, Worker Permitted to Sue “Physically Demonstrative” Executive Officer who “Massaged” her Neck

“Discipline” included “dismissal”: employer did not breach safety-reprisal settlement when it dismissed employee after harassment investigation

An employer that dismissed an employee after a harassment investigation did not breach a previous safety-reprisal settlement with the employee, the Ontario Labour Relations Board has held.  In effect, the employer never promised not to dismiss the employee.

The employee had previously filed a safety-reprisal Application against the employer at the OLRB which was settled. The settlement terms stated that the employee was aware that a harassment complaint had been made against him, that the employer intended to retain an external investigator, and that the investigation “may result in discipline”.

After the harassment investigation was concluded, the employer dismissed the employee. The employee then filed a breach-of-settlement Application with the OLRB claiming that there had been no discussion that “discipline” could include “dismissal”.  He said that, instead, there had been a “common understanding” that some form of discipline may result from the harassment investigation, but that the purpose of the discipline would be to correct any misconduct and ensure adherence to company rules and policies.

The OLRB decided:

“The applicant asserts no facts that would lead the Board to conclude that the parties meant to exclude termination as a possible disciplinary response by Brose.  The applicant does not say, for example, that he received an assurance from Brose in the lead-up to the settlement that Brose would refrain from terminating him, or that the range of any possible disciplinary response would exclude termination.  The plain words of the settlement do not qualify the term ‘discipline’.  And as I have pointed out, Brose’s anti-harassment policy specifically contemplates termination as a possibility where harassment is found to have occurred.”

Interestingly, in coming to its decision that “discipline” included “dismissal”, the OLRB noted that the company’s policy on Harassment in the Workplace stated that employees found to have engaged in harassment “will be subject to discipline up to and including termination” – commonly-used wording in employment policies.  This wording suggested that, at least at this company and at least with respect to harassment, termination was a “subset of dismissal”.

Jeffery v Brose Canada Inc, 2014 CanLII 49707 (ON LRB)

“Discipline” included “dismissal”: employer did not breach safety-reprisal settlement when it dismissed employee after harassment investigation

Employee’s lack of knowledge of OHSA was factor in denying him promotion; employee’s grievance dismissed

An employee’s lack of knowledge of safety laws was a proper consideration in his employer’s decision to deny him a promotion, a labour arbitration board has decided.

The employee, a unionized mechanic with the City of Moncton, applied for the position of Service Foreman-Mechanical.  His application was unsuccessful.  A coworker with less seniority won the position.  The employee filed a grievance under the collective agreement.

The issue was whether the employee had the qualifications to do the job.  One of the listed qualifications was “Knowledgeable in the Occupational Health and Safety Act and Regulations”.  The interview committee determined that he did not possess adequate knowledge of the Occupational Health and Safety Act and Regulations and that this was a requirement. The arbitration board noted that the employee did not even testify, at the arbitration hearing, as to his level of knowledge of that Act and the Regulations; as such, the arbitration board was unable to conclude whether he had the necessary knowledge.

The arbitration board noted that the union had vetted and approved the list of job qualifications prior to the job having been posted.  The arbitration board decided that the employee had also failed to prove that he had some of the other listed qualifications including supervisor experience and knowledge of certain computer applications.

The arbitration board closed by stating:

“There is no question in the mind of the Board the grievor was and is an extremely competent mechanic who may very well have been a competent foreman.  However, he did not provide adequate evidence, to support his contention of his capability to perform the job at the time of bulletining.  This is indeed unfortunate.”

Ryan v Moncton (City), 2014 CanLII 51635 (NB LA)

 

Employee’s lack of knowledge of OHSA was factor in denying him promotion; employee’s grievance dismissed

No damages awarded for unforeseeable workplace assault, but employer ordered to rewrite harassment policy

The fact that an employee had engaged in harassment did not make it foreseeable that he would assault a coworker, a labour arbitrator has held.  However, the company’s harassment policy was deficient and needed to be rewritten.

The decision arose from a union grievance alleging that the employer had not provided an injury-free workplace.  An employee, Kryzanowski, alleged that another employee, Wilson, had struck him in the head from behind with a “rather substantial sized plastic lunch pail”. The union alleged that the company had breached the collective agreement and the Saskatchewan Occupational Health and Safety Act because of its actions or inactions both before and after the incident.

The arbitrator stated that there was no doubt that the assault constituted harassment as defined in the OHSA.  ”A serious physical assault, such as this one, is perhaps the most profound single incident of harassment that exists.”  However, according to the arbitrator, the core question was whether the company, through its management personnel and supervisors, knew or should have known that Wilson was a physical threat to other employees and failed to take steps to prevent it.

The arbitrator decided that although Wilson had demonstrated “meanness and bullying” behaviour towards Kryzanowski through numerous disrespectful comments, and the company’s management were sufficiently aware of Wilson’s conduct to know that he was mean-spirited and had anger problems, none of his previous actions were physical alterations and there was no evidence that he was on the verge of physically attacking a fellow employee.  The assault was not foreseeable by the company.

As such, Kryzanowski was not entitled to damages for the assault.  However, the company was ordered to keep Wilson and Kryzanowski on different shifts and direct Wilson to have no contact with Kryzanowski.

Lastly, the arbitrator found that the company’s harassment policy did not comply with the OHSA and regulations in that it was not kept current and did not include specific contents required by the regulations.  The arbitrator ordered the company to “take immediate steps to comply with the Occupational Health and Safety Act by writing its harassment policy to be compliant with the Act and regulations.”

Shaw Pipe Protection Limited v Construction and General Workers’ Local Union No 180, 2013 CanLII 94439 (SK LA)

No damages awarded for unforeseeable workplace assault, but employer ordered to rewrite harassment policy

Ontario OHSA convictions at six-year low in 2013/14, average fine relatively steady

The number of Ontario Occupational Health and Safety Act convictions was at a six-year low in the government’s fiscal 2013/14 year, Ontario Ministry of Labour statistics show.

There were 780 convictions in 2013/14, compared to the previous five years’ conviction numbers of 814 (in 2012/13), 903, 948, 1,164 and 1,303 (in 2008/09), a consistent downward trend over that six-year period.

The average fine per conviction in fiscal 2013/14 was $11,932, compared with $13,139, $10,821, $11,911, $11,091 and $10,849 over the previous five-year period.  Interestingly, this shows that the average fine has remained relatively steady over that period.

The MOL notes that more than one conviction may be related to a single incident.  For instance, one workplace accident on a construction site could result in two convictions against the constructor, three against a subcontractor and one against a supervisor.

Our extensive 2012 study of Occupational Health and Safety Act prosecutions and fines showed that 68% of companies charged with OHSA offences plead guilty, and fines negotiated with the MOL tend to be much higher than those set by the court after hearing submissions from the MOL and the defendant.

Note that the Ministry of Labour statistics include Part I contested tickets, Part I summonses and Part III prosecutions.  Our 2012 study looked at Part III prosecutions (reserved for more serious cases, which tend to involve significantly higher fines) and did not include Part I tickets or summonses.   Part I tickets and summonses carry a maximum fine of $1,000 per conviction while Part III prosecutions have a maximum fine of $500,000 per conviction.  As such, the average fines in our study were higher than those in the MOL statistics referenced above.

Ontario OHSA convictions at six-year low in 2013/14, average fine relatively steady

MOL safety blitz results show many new businesses non-compliant with basic requirements

The results of a recent Ontario Ministry of Labour safety blitz shows many new small businesses violate basic legal requirements such as posting a copy of the Occupational Health and Safety Act.  And non-compliant employers can expect future visits from MOL inspectors.

The MOL says that between April 1, 2013 and March 31, 2014, its inspectors visited new small businesses in the industrial sector that had fewer than 20 workers.  The MOL says that it focused on “businesses that had registered with the Workplace Safety and Insurance Board (WSIB), but had no prior contact with the ministry.”

Some of the  most common compliance orders issued by MOL inspectors in the blitz were: post a copy of the Occupational Health and Safety Act; prepare a health and safety policy and maintain a program; have a worker health and safety representative; have the health and safety representative conduct monthly inspections; provide “information and instruction” on workplace harassment; and maintain a workplace violence prevention program.

The MOL states that inspectors visited workplaces in the industrial sector including retail establishments, restaurants, wood and metal fabrication establishments, industrial services, wholesalers, automotive manufacturers and vehicle sales and service workplaces.

The MOL’s  enforcement initiative is being repeated in the 2014-2015 fiscal year, with each MOL industrial inspector expected to inspect four to eight small businesses with 50 or fewer workers, which have not been previously registered or inspected by the ministry. The MOL says that this initiative will “increase small business awareness of the workplace parties’ roles and responsibilities under OHSA and its regulations”, “promote awareness and compliance with new mandatory occupational health and safety training for workers and supervisors that came into effect on July 1, 2014″, and “support vulnerable workers by making them aware of their rights under the OHSA and the resources available to help them”.

As we have previously advised, employers should, in particular, ensure that they prepare and post all required postings under the OHSA, since doing so will show the MOL inspector that the employer is aware of its basic obligations and has a safety program in place.  See here for our article on health and safety posting requirements in Ontario.

MOL safety blitz results show many new businesses non-compliant with basic requirements

“Don’t worry about me, I carry weapons”: employee’s violent statements warranted serious discipline but not dismissal

An electrician’s comment, “Don’t worry about me, I carry weapons” and “it would really feel good to kill something today” constituted workplace violence but did not warrant dismissal, the Ontario Labour Relations Board has held.

The employee had a strained relationship with an Electrical Foreman.   When a female co-worker noticed her in distress about the presence of the foreman, she offered to accompany the employee to the washroom. The employee then made the “weapons” comment, afterwards saying that she was referring to the tools that she carries such as an electrician’s knife and spud wrench, but that she would never harm anyone except to defend herself.  Later in the day, in a meeting with her supervisor and union representatives, she complained again about the foreman and said that she “had a knife”.

An investigator concluded that the employee had made “violent comments” and was emotionally unstable.

The OLRB decided that the employee’s comments “could reasonably be interpreted to constitute a threat to exercise injurious or potentially injurious physical force.”  However, there was nothing premeditated about the threats and there was no previous pattern of threatening conduct on her part. She was “guilty of having engaged in violent threats, but in comparing them with the kinds of behaviour in the cases cited to me by both parties, her comments were at the lower end of the spectrum.” 

The OLRB did not believe that the employee was likely to repeat “such extreme conduct” or that she was a threat to the safety and well-being of other employees.  The dismissal was, therefore, excessive.

Canadian Union of Skilled Workers v Hydro One Inc, 2014 CanLII 44660 (ON LRB)

“Don’t worry about me, I carry weapons”: employee’s violent statements warranted serious discipline but not dismissal

Employer asks HRTO for permission to access employer’s own “Occupational Health and Claims Management” file on employee

Must an employer obtain permission from the Human Rights Tribunal of Ontario to access medical records held in the employer’s own file on an employee who filed a human rights complaint with the Tribunal? That question is raised by a recent Tribunal decision.

The employer submitted that Tribunal authorization was necessary “because there may be a conflict with respect to privacy standards required by applicable legislation. The respondent indicates that the expectations and protections under the Personal Health Information Protection Act, 2004 . . . for health information custodians regarding disclosure may be different from the duty imposed on employers by the Occupational Health and Safety Act . . . The respondent submitted that the Tribunal has granted the orders it seeks in other cases in which similar circumstances arose.”

The employer was likely referring to subs. 63(2) of the OHSA which states:

“No employer shall seek to gain access, except by an order of the court or other tribunal or in order to comply with another statute, to a health record concerning a worker without the worker’s written consent.”

Because the employee alleged disability-discrimination relating to her post-traumatic stress disorder, the Tribunal was satisfied that some but not all of the documents contained in the Occupational Health and Claims Management file were arguably relevant and that the employer required access to them in order to meaningfully respond to the employee’s human rights complaint.  Access was granted.

The case illustrates that employers seeking to use information in an employee medical file for litigation purposes should proceed cautiously and should seek a court or Tribunal order if necessary.

Feres v. Toronto Transit Commission, 2014 HRTO 980 (CanLII)

Employer asks HRTO for permission to access employer’s own “Occupational Health and Claims Management” file on employee

MOL permits employer to have multi-workplace joint health and safety committee, union’s challenge dismissed

A union has lost a request to suspend a Ministry of Labour Director’s order allowing a school board to establish a multi-workplace joint health and safety committee.

The Ontario Occupational Health and Safety Act requires a joint health and safety committee at each workplace where twenty or more workers are regularly employed.  The default rule under the OHSA is that each workplace should have its own committee.  However, the Minister of Labour or his or her delegate has the power to make an Order permitting one joint health and safety committee to cover multiple workplaces.

The Peel District School Board received an Order from a Ministry of Labour Director permitting it to establish and maintain a multi-workplace joint health and safety committee according to certain “terms of reference”.

The Canadian Union of Public Employees challenged the MOL Director’s multi-workplace Order at the Ontario Labour Relations Board, and asked the OLRB to suspend that Order pending the outcome of the appeal.

The OLRB refused to suspend the Order, deciding that the OLRB “appears to have no jurisdiction to deal with anything but an inspector’s order”, not an Order of the Minister of Labour or an MOL Director.  As such, the OLRB had no authority to suspend the multi-workplace Order.

This decision shows that when one workplace party asks the Minister of Labour to permit a multi-workplace joint health and safety committee, the time for parties to make submissions is before the Minister (or MOL Director) makes his or her decision.  Effectively, there is no appeal to the OLRB.

Canadian Union of Public Employees v Peel District School Board, 2014 CanLII 38304 (ON LRB)

MOL permits employer to have multi-workplace joint health and safety committee, union’s challenge dismissed

MOL inspector’s grievance gives glimpse into MOL’s after-hours accident response process

Ministry of Labour managers have discretion as to whether to send out an inspector when an employer calls after-hours about a workplace accident, a recent decision suggests.

An MOL inspector filed a grievance under his collective agreement claiming that when a call regarding a workplace injury came in at 5:15 pm, the call should have been referred to him and not the on-call MOL manager. The manager had determined that there was no need to send an inspector to the workplace that night.  The accident involved a broken bone which was a “critical injury” (a worker lost her footing and jumped down the last 3 stairs) under the Occupational Health and Safety Act.

The inspector claimed that he would have gone to the workplace, at least to “secure the site”, and would have earned “premium pay” for his time spent on the visit.

A vice-chair of the Grievance Settlement Board noted that the “Ministry Operations Division Policy and Procedures Reference Manual” contemplated that only after-hours calls falling within certain categories including “critical injuries” are forwarded to the inspector on-call, and that the hotline operator could contact an MOL manager if he or she required clarification or direction on any issue.  The manager had the authority to conduct “triage” and not to send an inspector to the workplace that evening.

There was no violation of the collective agreement or of the Reference Manual, so the inspector’s grievance was dismissed.

Ontario Public Service Employees Union (Beaulieu) v Ontario (Labour), 2014 CanLII 40173 (ON GSB)

 

MOL inspector’s grievance gives glimpse into MOL’s after-hours accident response process

Alleging panic attacks due to mistreatment at work, employee’s HRTO application dismissed for duplicating court action

Employees may not raise the same human rights issue before the Human Rights Tribunal of Ontario and the courts, a recent HRTO decision confirms.

The employee had commenced a court action in which he claimed that he was a person with a disability and as a result he experienced panic attacks.  He alleged that he had experienced panic attacks in part because of mistreatment at work.  He made essentially the same allegations in a disability-discrimination case at the HRTO, claiming damages for alleged violations of the Human Rights Code in both cases.

The HRTO dismissed his human rights Application, deciding that because the employee had started a court action claiming damages for alleged violations of the Human Rights Code and that court proceeding had not been finally resolved, section 34 of the Human Rights Code required that the HRTO proceeding be dismissed.  Duplicative proceedings were not permitted.

Toker v. 1044765 Ontario Inc., 2014 HRTO 1159 (CanLII)

Alleging panic attacks due to mistreatment at work, employee’s HRTO application dismissed for duplicating court action

Notes taken post-accident can lose privilege if used to refresh memory, court decision suggests

Privileged notes taken by a witness – or by the employer from a witness – after a workplace accident may cease to be privileged if used by the witness to prepare to testify in court, a recent court decision suggests.

The case, which was not an occupational health and safety case, involved charges of refusing to provide an “Approved Screening Device” sample. The charge is often laid where a driver refuses to blow into a breathalyzer to determine whether he or she was driving while impaired.

The accused testified that he had made notes after the incident, as his father had told him to write down everything that he remembered, word for word.  At trial, he testified that he had read the notes to prepare for trial.

The judge decided that the accused had used the notes to refresh his memory, and therefore the litigation privilege over the notes was lost.  The judge decided:

“When the accused chooses to refresh his memory from notes to which litigation privilege would otherwise apply prior to taking the stand, the Crown is entitled to see such notes subject to the court’s discretion. An accused person who has prepared notes to refresh their memory and uses those notes to the refresh their memory prior to testifying has waived any litigation privilege attached to those notes. It is important that the opposing party have the opportunity to test the memory of events and expose inaccuracies in memory.”

Employers facing Occupational Health and Safety Act charges should understand that notes that would otherwise be litigation-privileged that are taken by the employer after a workplace accident may lose their privilege, and therefore be obtained by the prosecutor, if used by a witness to refresh his or her memory before testifying.

R. v. Sachkiw, 2014 ONCJ 287 (CanLII)

Notes taken post-accident can lose privilege if used to refresh memory, court decision suggests