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MOL Releases OHSA-Reprisal Guidance for Workers and Employers

The Ontario Ministry of Labour has released a Fact Sheet that provides guidance to workers and employers on the safety-reprisal provisions of the Ontario Occupational Health and Safety Act. Those provisions permit a worker to complain to the Ontario Labour Relations Board that he or she has been disciplined, fired or otherwise mistreated because he or she sought the protection of the OHSA.

The Fact Sheet touches on recent changes to the OHSA that impact on reprisal complaints:

-Ministry of Labour inspectors are now able to file reprisal complaints on behalf of a worker with the worker’s consent (presumably workers who are worried about their job security will be more likely to advance a reprisal complaint if the MOL filed and is monitoring it)

-small employers (those with fewer than 50 workers) can now obtain free representation from the Office of the Employer Adviser in mediations and hearings at the OLRB  dealing with reprisal complaints

-Non-union workers can now obtain free advice and representation from the Office of the Worker Adviser in reprisal proceedings at the OLRB

The Ministry of Labour Fact Sheet is online at http://www.labour.gov.on.ca/english/hs/topics/reprisal.php

 

MOL Releases OHSA-Reprisal Guidance for Workers and Employers

Text Message “Dubious”: Harassment-Reprisal Complaint Dismissed

Basing a harassment-reprisal complaint on a text message is risky when one cannot prove that the text message was ever sent.

The employee, who worked for a pool company, was moved around to different jobs because he had trouble carrying out many of his duties.  Finally the employer found a warehouse position in which the employee excelled. They presented the job description to the employee on November 12, 2010.  The employee raised concerns with the job, and the employer stated that if he did not take that job, there were no other jobs left for him.  The employee refused to take the job, and the employer sent him a Record of Employment stating that he had quit. (The OLRB found that the employer had actually terminated the employee).

The employee filed a reprisal complaint under the Ontario Occupational Health and Safety Act relying on the harassment provisions introduced by Bill 168.

At the OLRB hearing, the employee claimed to have sent his employer a text message in the early morning before the meeting.  The employer denied ever receiving it.  The employee provided the OLRB with a copy of a document that he said was the text message:

“Hi Elton, this is Oneal. Nov 12. I have been very patient and calm with the ill treatment that I have been receiving from supervisor/manager Alex.  You said it yourself, ‘you two don’t get along’. That’s not true I have been respectful and calm with everything that she has said to me and about me.  You said, ‘ill [sic] help you to be on her good side.’  Her treatment, verbal harassment, has gotten worst [sic]. I have been yelled at, called a turkey and a banana.  This has been going on for longer than a month. I ask you to look into this again but this time to stop it completely I don’t deserve to be bullied in the workplace.  I am a hard worker.  I do my best everytime [sic]. I lifted things that are normally too heavy for me to manage in order to be a team player. I am available to talk to you about this issue.  However you have been present many times and therefore know what issues I am seeking a solution for.”

The OLRB found that the employee’s evidence about the text message was “dubious”.  The OLRB stated that the document purporting to be the text message was dated three days after his termination, and that the employee had explained that this was because he subsequently sent a copy of the text message to his e-mail address, and then printed the e-mail from his computer.  Also, it was odd that the message began by the employee noting the date of November 12.  The OLRB stated, “Why did it occur to Mr. Walters to specify the date within the body of the text message?  And what prompted him on the morning of November 12 to prepare a remarkably lengthy and detailed text message, seemingly on the spur of the moment as he made his way to work?”  Also, contrary to the contents of the alleged text message, there was no evidence adduced in the hearing that the employee ever previously spoke to the employer about the supervisor, Alex, or that the employer was aware of any previous tension between the employee and the supervisor.  As such, the reliability of the employee’s evidence was in question.

The OLRB concluded that the employer did not terminate the employee for complaining about harassment. 

The OLRB has previously held that a harassment complaint cannot form the basis of a reprisal complaint under the OHSA.  See our previous post at: http://www.occupalhealthandsafetylaw.com/bill-168-update-olrb-will-not-hear-harassment-reprisal-complaint-under-ohsa

 Walters v. PPL Aquatic, Fitness and Spa Group Inc., http://www.canlii.org/en/on/onlrb/doc/2012/2012canlii77/2012canlii77.html

Text Message “Dubious”: Harassment-Reprisal Complaint Dismissed

Saskatchewan Law Proposed to Protect Late Night Retail Workers

The Saskatchewan legislature completed its first reading of a proposed new law, Bill 27, known as “Jimmy’s Law” on December 15, 2011.  This law, if passed, would amend Saskatchewan’s Occupational Health and Safety Act to require employers operating gas stations, convenience stores or other retail stores that are open and staffed by a lone worker between the late night hours of 11:00P.M. and 6:00 A.M. to provide the lone worker with additional safety supports. 

In its current form, the Bill sets out two options for employers to choose from with respect to additional safety supports: an employer must either ensure that it assigns one or more other workers to join the lone worker during the late night hours, or alterntivaely, it must ensure that the lone worker is separated from the public by a locked door or barrier.  These options are similar to those required for the protection of lone workers in other Canadian jurisdictions, including British Columbia (see post entitled “WorkSafe BC Changing Late Night Retail Rules” below, posted on December 13, 2011).

The impetus for “Jimmy’s Law” was the June 20, 2011 dealth of Jimmy Ray Wiebe of Yorkton, Saskatchewan who was murdered while working alone at night at a local gas station.

 To review the Bill, click here:  http://docs.legassembly.sk.ca/legdocs/Bills/27L1S/Bill27-601.pdf

Saskatchewan Law Proposed to Protect Late Night Retail Workers

Mandatory Worker Safety Training Materials, Safety Poster, Released by Ontario MOL for Consultation

The Ontario Ministry of Labour has announced that it intends to pass a regulation that will introduce a mandatory safety awareness training program for Ontario workers.  The MOL also intends to require employers to post a Ministry-developed safety poster.

A draft of the safety poster may be viewed at http://www.labour.gov.on.ca/english/hs/pdf/poster_prevention.pdf.  The MOL indicates that it will eventually be mandatory to display the final version of the poster in workplaces.  Feedback may be given online at http://www.labour.gov.on.ca/english/hs/prevention/consultations/poster.php#feedback. 

The poster summarizes key rights and obligations of workers, as well as obligations of employers and supervisors. 

The MOL has also released at draft worker safety awareness workbook called “A Worker’s Guide in 4 Steps” (http://www.labour.gov.on.ca/english/hs/pdf/workbook.pdf).   It is a 22-page guide for workers that includes quiz questions. 

Finally, the MOL has released, in draft, “An Employer Guide to the Health and Safety Awareness Program for Workers” (http://www.labour.gov.on.ca/english/hs/pdf/employer_guide.pdf).  It is a 2-page guide to the employer’s role in providing safety awareness training to workers.

It appears from the MOL website that the employee workbook and employer guide will eventually be used as materials for a mandatory health and safety awareness training program for workers.  The MOL notes on its website that, “A regulation to make the programs mandatory will be required, and stakeholders will be consulted.”  As such, it appears that it will be a number of months, and possibly longer, before the mandatory training requirement becomes law.

Because it appears that the MOL will require the use of its materials, or possibly equivalent materials, in the mandatory worker training, the MOL’s draft materials will be of interest to employers.  Feedback on the employee workbook and employer guide may be provided online at http://www.labour.gov.on.ca/english/hs/prevention/consultations/workbook.php#feedback.

 

Mandatory Worker Safety Training Materials, Safety Poster, Released by Ontario MOL for Consultation

Ontario MOL Announces Safety “Improvements” – Including Safety Poster

On December 16th, the Ontario Ministry of Labour announced the following:

  • The MOL said that it intends to propose a new regulation under the Occupational Health and Safety Act that would enable the Office of the Worker Adviser and the Office of the Employer Adviser to provide “support” for workers and small businesses in relation to reprisal complaints under the Occupational Health and Safety Act.
  • The Ontario Labour Relations Board and the MOL have “mapped out” a process for quickly resolving OHSA reprisal complaints brought by workers whose employment has been terminated, including the role of MOL inspectors.
  • The MOL has created a poster that explains the basic rights and responsibilities of workplace parties under the OHSA.   The MOL said that the poster will soon be available in different languages for consultation with stakeholders.  After the poster has been finalized, employers may be legally required to display it in workplaces.
  • The MOL has prepared a “health and safety awareness workbook” for workers and an employer guide to the health and safety program for workers.  The MOL is also consulting on the workbook and guide.
  • The Minister intends to appoint two new minister’s advisory committees in 2012, one for small business and another for vulnerable workers.  The creation of these committees suggests that new resources may be coming in future for small businesses and possibly new resources or protections for “vulnerable workers”.
  • The transfer of responsibility for funding and monitoring the Health and Safety Associations from the WSIB to the Ministry of Labour is being prepared.
  • A permanent Prevention Council will soon be appointed, including representatives of business and labour and other health and safety experts.  An interim Prevention Council has been in place since February 2011.

While none of the above could be described as “major” changes, this announcement shows that the MOL and Ontario’s new Chief Prevention Officer will likely be active implementing changes to Ontario’s health and safety enforcement system in the near future.  Stay tuned for more updates.

 

Ontario MOL Announces Safety “Improvements” – Including Safety Poster

WorkSafe BC Changing Late-Night Retail Rules

WorkSafe BC (the province’s occupational health and safety regulator) has proposed amendments to BC’s “gas -and-dash” laws. Currently retailers in BC must assign more than one employee to work any shift from 11 p.m. to 6 a.m., or, ensure that any single worker is behind locked doors or other physical barrier. The new law, which will come into effect April 15, 2012, will allow a retail worker to work on his or her own between 11 p.m. and 6 a.m. provided that all of the following controls are instituted:

  • a time lock safe that can’t be opened during late night hours, and signage advising the public of this;
  • cash and lottery tickets not reasonable necessary to operate during late night hours are stored in the time lock safe, and signage advising the public of this;
  • video surveillance monitoring;
  • limited access to the interior of the premises;
  • good visibility in and out of the premises; and
  • personal emergency transmitters for the worker, who must be at least 19 years of age, that are monitored by the employer or a designated  third party.

The current law was dubbed the “gas-and-dash” law as it was introduced in 2008 after lobbying by the parents of a late-night gas attendant who was dragged to his death by a vehicle after he tried to prevent the driver from fleeing before paying.

WorkSafe BC contends that the new law will safeguard late-night workers while offering a solution to retailers whose businesses are unsustainable under the other two options.

WorkSafe BC Changing Late-Night Retail Rules

Bill 168 Update: OLRB Will Not Hear Harassment-Reprisal Complaint Under OHSA

In previous posts, we reported that the Ontario Labour Relations Board had expressed doubt about whether it has jurisdiction to hear a complaint under the Occupational Health and Safety Act that an employee suffered reprisal for alleging workplace harassment, but that the OLRB would hear a reprisal case alleging that the employer had neglected its obligations under Bill 168.

A Vice-Chair of the OLRB has now decided that the OLRB has no jurisdiction to hear a complaint under the OHSA that employee suffered reprisal for raising a harassment issue with his or her employer.  The decision, dated November 18, 2011, is called Harper v Ludlow Technical Products Canada Ltd.

Of course, if the employee claims that the harassment was discriminatory on the basis of sex, race, religion and other human rights grounds, the employee may still file a reprisal complaint with the Human Rights Tribunal of Ontario under the Human Rights Code

A reprisal complaint under the OHSA must allege that the employee suffered reprisal – such as discipline or discharge – for acting in accordance with the OHSA or seeking to have the employer comply with obligations under the OHSA.  However, the OLRB reasoned, OHSA does not impose an obligation on employers to eliminate harassment or even to follow the employer’s harassment policy; rather, the OHSA only requires employers to implement a harassment policy and provide employees with “information and instruction” on the policy.   It therefore appears that, for the OLRB to consider a reprisal complaint under the OHSA, it must be based on the employer’s failure to implement a harassment policy or provide employees with “information and instruction” on it. 

Employers will welcome this decision, as it requires employees to address harassment complaints internally under the employer’s own policy.  Employees may not resort to the OLRB – at least not under the OHSA – when employees are unhappy with the employer’s handling of the harassment complaint process.

 The decision may be read at: http://canlii.ca/en/on/onlrb/doc/2011/2011canlii73172/2011canlii73172.html

Bill 168 Update: OLRB Will Not Hear Harassment-Reprisal Complaint Under OHSA

Neglect of Bill 168 forms Basis for Reprisal Complaint

Arguing that his “termination would not have happened” had his employer complied with Bill 168 and thus addressed his harassment complaint properly, an employee has persuaded the Ontario Labour Relations Board to allow his OHS reprisal complaint to proceed to a full hearing.

Bill 168 amended the Ontario Occupational Health and Safety Act to add requirements dealing with workplace violence and harassment.

After he was fired, the employee filed a reprisal complaint with the OLRB alleging that his employer, the Carpenters’ District Council of Ontario, dismissed him for complaining about his immediate supervisor’s conduct.  The Carpenters asked the OLRB to dismiss the complaint, arguing that the conduct did not constitute “workplace harassment” and that the complaint did not allege a violation of the OHSA.

The OLRB noted that the harassment and violence provisions were recently added to the OHSA and had not been the subject of many decisions interpreting the interplay between the workplace harassment obligations and the reprisal provisions.  As such, the employee should be permitted to have his reprisal complaint proceed to a full hearing.

Ontario employers should note that non-compliance with Bill 168 – including failing to prepare and post policies on workplace harassment and violence – could result not only in compliance orders from Ministry of Labour inspectors but could also in reprisal complaints to the OLRB.

The decision may be viewed at: http://www.canlii.org/en/on/onlrb/doc/2011/2011canlii71880/2011canlii71880.html

Neglect of Bill 168 forms Basis for Reprisal Complaint

Threats are “Violence” Post-Bill 168: Firing of Long-Term Employee Upheld

Workplace threats are now “violence” in Ontario and justify strong discipline, the decision of an Ontario arbitrator suggests.  Bill 168 added workplace violence and harassment to the Occupational Health and Safety Act and defined “workplace violence” to include threats.

The case involved a long-service employee of the City of Kingston.   In a heated discussion, she said to a co-worker, who was also her local union president, “Yes, and you will be [dead] too”, referring to a former local union president who had died.

The grievor, a labourer/truck driver in the City of Kingston’s parks department, had a tortured work history during her 27 years of service.  She had been fired in 1989 and reinstated by a labour arbitrator.  She was fired again in 1992 and was reinstated during the grievance procedure.  She had also filed a human rights complaint which the Ontario Human Rights Commission decided in 1992 not to send to a hearing.  In 2001 and 2004, she had received “non-disciplinary verbal warnings” for shouting at her supervisor and angrily confronting a co-worker.  She admitted that she had “always had a short fuse, and a bad temper”.  She had ongoing attendance issues and had attended an anger management course.

The union grieved the grievor’s discharge for the threat.  Arbitrator Elaine Newman said that Ontario’s Bill 168 affected, in four different ways, the approach to cases of discharge for uttering a threat: (1) Bill 168 provides that threats are now “violence”; (2) employers are now obligated to investigate and address all threats of violence; (3) arbitrators must consider threats to be serious incidents, when assessing whether termination was reasonable; and (4) arbitrators must now consider workplace safety in that assessment.

In this case, even though the arbitrator found that the grievor did not really intend to end her co-worker’s life, the incident was very serious, the co-worker was shaken, and – importantly – the grievor did not apologize, accept responsibility for her actions, or show any willingness to correct her propensity for anger-induced behaviour.  She was, therefore, the “author of her own circumstances.”  The termination was appropriate.

This decision provides a useful precedent for employers – both unionized and non-union – to impose strong discipline on employees who engage in violence, including threats, in the workplace.  In the face of high-profile workplace deaths from violence, one expects to see more hard-line responses to violence in future.

Threats are “Violence” Post-Bill 168: Firing of Long-Term Employee Upheld

Stress Claims Soon to be Accepted in British Columbia

On Thursday last week, the B.C. government announced that it will amend the B.C. Workers Compensation Act to extend coverage for mental stress claims. Employees who suffer from a mental stress condition arising out of the workplace will now be eligible to receive workers’ compensation benefits. Currently only those who suffer from an “acute reaction to a sudden and traumatic event” are eligible. The change will now benefit those who suffer mental stress as a result of on-going or cumulative events in the workplace.

This change will bring B.C. in line with the law in other provinces, including Quebec, Saskatchewan and Alberta, and the three northern territories.

Several studies have found that stress is the primary reason for absenteeism from the workplace. Many employees claim that that stress is caused by their work environment: unmanageable workloads, overly-demanding superiors, or tense relations between co-workers. Undoubtedly this amendment will significantly increase the number of workers’ compensation claims that are made . In fact, the Labour Minister has estimated that WorkSafe BC’s yearly costs will increase between $10 million and $18 million.

The B.C. government has yet to announce when the proposed new legislation will be tabled, or what the amendment will look like. Stay tuned …

Stress Claims Soon to be Accepted in British Columbia