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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

The arbitrator upheld the dismissal.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Guizzo v. Metro Ontario Inc., 2014 ONWSIAT 2526

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The grievance against the presentation was therefore dismissed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As such, the employee was dismissed for just cause.

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

 

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

“Not the right fit”? Fired hours after MOL inspector’s visit, employee awarded $19,000 in damages

Employers who have bona fide reasons for dismissing an employee should avoid using “not the right fit”. They should also show up at Ontario Labour Relations Board hearings.

An employee who was dismissed hours after a Ministry of Labour inspector’s visit, was fired in retaliation for raising safety issues and was awarded $19,000.00 in damages.

The employee was a maintenance manager at a hotel.  In May 2014, an anonymous telephone call was made to a MOL health and safety inspector regarding floor drains backing up at the hotel as well as a “precariously hanging partition wall hanging in the ballroom”.  Around the same time, the employee had informed the hotel’s General Manager that the employee required a fall protection harness in order to work on a 25 foot high scaffold. The General Manager refused his request and ordered him to do the work without a safety harness.

The MOL inspector met with the employee and General Manager, and issued an order that required the hotel to use a suitable company to repair the partition wall as it was too dangerous for the maintenance department to repair.  Despite that, the General Manager continued to pressure the employee to climb the scaffold.

A few hours after the inspector left, the General Manager dismissed the employee. The termination letter stated that the employee was “not the right fit to our hotel property”, while the hotel’s response to the employee’s reprisal complaint at the OLRB claimed that he was “not skilled enough for the position” and that he had not been terminated “because he refused dangerous work”.

The Ontario Labour Relations Board found that the hotel’s “attempted explanation” for the employee’s dismissal was questionable, “to express it mildly”.  If the employee had not been the right fit, or was not skilled enough, then there would have been written or verbal evidence to that effect.  However, there was no evidence that the employee had any shortcomings, and in fact the General Manager had responded “Awesome” to an e-mail from the employee in which he had described some “things which I would like to accomplish in the maintenance department”.  No one had attended the OLRB hearing for the hotel.

The OLRB decided that the employee had suffered a reprisal under the Occupational Health and Safety Act: he was fired for raising safety issues.  That was a violation of the OHSA.  There was no other possible conclusion.  The OLRB awarded the employee six months’ wages, amounting to $19,000.00, and ordered the hotel to post a copy of the OLRB’s decision in the hotel’s premises so it could be read by maintenance staff.

Sean Rapke v Sylvanacre Properties Limited o/a Four Points Sheraton, 2014 CanLII 75962 (ON LRB)

“Not the right fit”? Fired hours after MOL inspector’s visit, employee awarded $19,000 in damages

Supervisor fined after workers exposed to asbestos dust

A supervisor with an asbestos abatement company, and his employer, have pleaded guilty to charges under the Occupational Health and Safety Act and were fined, after workers were exposed to asbestos dust on a job site.

The supervisor was fined $4,000.00 after pleading guilty to failing to ensure workers used protective clothing and equipment.

Three workers were working on an asbestos abatement project at a single-family home. The abatement area was enclosed.  In that area, certain asbestos containing materials had been removed and there was an asbestos dust hazard present.

A Ministry of Labour inspector attended and conducted an inspection.  The inspector found one of the workers exiting the enclosed area wearing street clothing.  Two other workers were found inside the enclosed area not wearing protective clothing; one was performing clean-up and the other was securing bags filled with asbestos-containing material.

The Ministry of Labour, in its press release, states that “There is potential for harm when workers and others are exposed to even small amounts of asbestos.”

The company pleaded guilty to failing to ensure that only persons wearing protective clothing and equipment enter a work area where there is an asbestos dust hazard. The company was fined $25,000.00.

The Ministry of Labour generally does not put out a press release for cases involving a fine of less than $50,000.00.  It appears from this and other press releases in asbestos cases, though, that the MOL may make an exception for cases involving asbestos.

The Ministry of Labour’s press release may be read here.

 

Supervisor fined after workers exposed to asbestos dust

Employer Who Voluntarily Complied with MOL Inspector’s Orders Was Not Entitled to Suspension of Orders Pending Appeal

The Ontario Labour Relations Board has held that where an employer had complied with a Ministry of Labour inspector’s compliance orders under the Occupational Health and Safety Act, to the satisfaction of the MOL, the operation of the orders should not be suspended while the employer appeals the orders.

Employers sometimes appeal MOL inspectors’ orders after an accident, in the hopes of obtaining a decision from the OLRB that the employer did not commit any violation of the OHSA that would justify the orders.  Such a decision can be useful in avoiding charges under the OHSA.

In those cases, employers will often seek a suspension of the inspector’s orders until the appeal is decided.

The OLRB decided, however, that where the employer has already complied with an order, the suspension request is moot and should not be granted. In particular, there was no prejudice to the employer if the operation of the order was not suspended.

This decision shows that an employer wishing to obtain such a suspension cannot voluntarily comply with the orders. Instead, the employer must quickly appeal the order and apply for a suspension, before the deadline set by the MOL inspector for compliance with the order.  The employer may, however, proceed with the appeal of the (unsuspended) order.

Horizon Utilities Corporation v A, 2014 CanLII 75404 (ON LRB)

Employer Who Voluntarily Complied with MOL Inspector’s Orders Was Not Entitled to Suspension of Orders Pending Appeal

WSIB Age Cut-off for Loss-of-Earnings Benefits not Discriminatory Against Older Workers: Court

Ontario’s Divisional Court has decided that the Workplace Safety and Insurance Act’s age cut-off for loss of earnings benefits for older workers did not violate the Canadian Charter of Rights and Freedoms.

Subsection 43(1) of the WSIA cuts off loss of earnings benefits when an employee reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury; or two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury.

The appellant worker, Daniel Gouthro, worked for the City of Toronto. He was injured at work when he was 63 years old.  Because of subs. 43(1) of the WSIA, the WSIB cut off his loss of earnings benefits two years after the date of the injury, when he was 65 years old. Gouthro argued that that cut-off was discriminatory and thus violated the Charter.

The Court noted that one of the stated purposes of the WSIA was that the WSIB operate in a “financially responsible and accountable manner”, so loss of earnings benefits cannot be paid for life.  If the WSIA provided that injured workers were to receive loss of earnings benefits until they died, that would imply that people work until they die.  Both intuitively and statistically, that seemed incorrect.  The Court noted that loss of earnings benefits should be replaced by retirement income benefits at an age reflecting typical retirement.

The Court also noted that the WSIA’s cut-off of loss of earnings benefits “does not create a disadvantage based on a stereotypical attribute. It is grounded in the statistically verifiable facts referred to earlier; namely that as of 2008 approximately 90% of Canadian workers stop working at the age of 65 years and 90% of workers injured after the age of 61 return to work within two years.”

As such, the WSIB’s age cut-offs were not discriminatory and remained in effect.

Gouthro v. Workplace Safety and Insurance Appeals Tribunal et al., 2014 ONSC 7289 (CanLII)

 

WSIB Age Cut-off for Loss-of-Earnings Benefits not Discriminatory Against Older Workers: Court

Where MOL Inspector Withdraws OHSA Compliance Order, OLRB Cannot Reinstate While Appeal Argued

Although an employer may appeal a Ministry of Labour inspector’s rescission (withdrawal) of a compliance order that he or she wrote to an employer under the Occupational Health and Safety Act, the Ontario Labour Relations Board cannot suspend that rescission – effectively reinstating the order – until the appeal is decided, the OLRB has held.

In July 2014, an MOL inspector issued 4 orders against the Ontario Ministry of Children and Youth Services.   In August, the inspector rescinded 3 of those orders.

The union, Ontario Public Service Employees Union, appealed the rescission of the 3 orders and asked the OLRB to suspend the inspector’s rescission of those 3 orders pending the result of the appeal.  Effectively, the union was asking for the orders to be reinstated while the appeal was being argued.

The OLRB refused to suspend the rescission of the 3 orders. It stated that the OLRB has authority to suspend the operation of an order, but not of a non-order.  The MOL inspector’s rescission of the order was equivalent to not issuing an order.   There was nothing to suspend.

This means that where an MOL inspector withdraws a compliance order under the OHSA, the order will remain withdrawn unless and until the OLRB, after hearing the full appeal, reinstates the order.

Ontario Public Service Employees Union v Ontario (Ministry of Youth and Children Services), 2014 CanLII 75073 (ON LRB)

Where MOL Inspector Withdraws OHSA Compliance Order, OLRB Cannot Reinstate While Appeal Argued

OLRB Agrees to Hear Another Harassment Case

The debate continues as to whether the Ontario Labour Relations Board has jurisdiction to hear harassment-reprisal complaints under the Occupational Health and Safety Act, but another Vice-Chair of the OLRB has said “yes”.

As we wrote in another post, an earlier OLRB decision called Investia had suggested that because the OHSA does not require employers to prevent harassment – but only to have a harassment policy and program, to provide “information and instruction” to employees on harassment, and to post the policy – the OHSA does not protect employees who were dismissed for complaining about harassment.

Recent decisions of the OLRB, and now the OLRB’s November 21, 2014 decision involving Celco Inc., have come to the opposite conclusion.  In the Celco case, an employee alleged that she had experienced continuing workplace harassment from a co-worker and had complained to the employer about it several times.  She said that the employer took no action, but rather dismissed her from her employment the same day she complained to the employer about harassment.

Vice-Chair Derek Rogers of the OLRB stated:

“The applicant has asserted that she sought to have the responding party investigate and deal with her complaints and that she sought enforcement of the Act by making her reports.  For the purposes of the responding party’s motion and at this stage of the proceedings, that is sufficient in the Board’s view . . . According to the applicant’s allegations, there was a very close temporal nexus between the applicant’s raising issues about what she alleged as ‘workplace bullying’ by a co-worker (by then promoted to a supervisory position over the applicant) and the notification by Celco that the applicant’s employment was terminated.  The timing of the ‘without cause’ termination of employment and the allegation that there was no rationale offered other than that the applicant was not happy at Celco are sufficient in the Board’s view to support the proposition that Celco should be called upon to explain its position regarding the employment termination.”

As such, the OLRB permitted the employee to advance her complaint that she was retaliated against for complaining about harassment, and that that retaliation violated the OHSA.  The OLRB rejected the employer’s request to dismiss the complaint at an early stage.

One lesson from the decision is that wherever there is a risk that the employee will allege that her dismissal was in retaliation for her raising safety concerns, the employer should, in the termination letter, provide a clear and supportable non-retaliatory rationale for the termination.  By not offering a rationale, the employer may encourage a presumption that the employee was dismissed in retaliation for raising safety issues.

Ram v Celco Inc., 2014 CanLII 74839 (ON LRB)

OLRB Agrees to Hear Another Harassment Case

Two company directors jailed 25 days after worker dies, no safety training provided

Rarely are senior corporate officials jailed for health and safety offences in Canada.  But recently, two company directors of an importer and retailer of furniture and accessories, were jailed for 25 days after a worker died from a fall.

The Ontario Ministry of Labour says, in its press release, that the worker was moving merchandise at the Brampton workplace of New Mex Canada Inc., using a combination forklift /operator-up platform called an order picker. The order picker had been modified to add a platform supported by the forks that was tack-welded to the operator platform. There was no guardrail around the added platform. The worker was not wearing fall protection.  The worker was pronounced dead after he was found on the floor.  The cause of death was  determined to be blunt force trauma to the head.

The Ministry of Labour states that its investigation found that there had been no health and safety training provided to warehouse workers, and workers said that they were not provided with fall protection equipment.

The two corporate directors were charged with failing as directors of New Mex Canada Inc. to take reasonable care that the corporation complied with the Occupational Health and Safety Act and with Regulation 851 (Industrial Establishments). Both pleaded guilty.   Both received a 25-day jail sentence, to be served on weekends.  Also, both were ordered to take a health and safety course within 60 days.

Further, the employer, New Mex Canada Inc. was fined $250,000.  It pleaded guilty to failing to provide training and supervision to a worker regarding fall protection and/or working from a height, and failing to ensure the safety measures required by law were carried out.

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

Two company directors jailed 25 days after worker dies, no safety training provided

Persistent mockery, intimidation of supervisor was “juvenile and unworthy of a 12 year old”, warranted 6-month suspension of long-term employee

An employee’s persistent mockery and intimidating conduct towards a supervisor warranted a 6-month suspension, an arbitrator has held.

The employee’s conduct included the following:

1. On one occasion, after the supervisor greeted him, the employee started hollering aggressively at him, “Oh that’s the way it’s gonna be … Hi Dan, Oh Hi Dan, How are you.”  The employee continued to yell at the supervisor until he was far enough away that he could not hear him.

2. The next week, the employee was parked nearby and when he saw the supervisor, he rolled his window down and started hollering an aggressive and sarcastic greeting to him.

3. The next week, the supervisor met up with the employee who gave him a similarly aggressive greeting.

4.  When the supervisor was leaving work at the end of another day, the employee drove up in a truck so that he was close to the supervisor and rolled his window down and aggressively and sarcastically greeted him.

5.  On another occasion, the supervisor observed the employee see him, and said “good morning” and he replied with the aggressive greeting.  The employee continued with the loud aggressive greeting until the supervisor unlocked the door to the stores area and went in.

6.  Another day, the employee approached the supervisor and loudly greeted him, interrupting his conversation with another worker.

7.  Lastly, on another occasion, the employee very loudly and aggressively called out to the supervisor and carried on with an aggressive and bullying greeting.  This continued until the supervisor had reached the doorway that exits into a hallway.

The supervisor reported that the employee’s conduct was causing him to have trouble concentrating, he wasn’t sleeping, and his wife was concerned for their safety. He went to see his doctor and was referred for counselling.

The arbitrator found that the employee’s conduct appeared to relate to the supervisor’s efforts to bring some efficiency to an area of the company’s operations that was “in demonstrable need of change”.  The employee admitted that he had been deliberately sarcastic, that he knew his conduct was unwelcome, and that he had tried to get under the supervisor’s skin.  The arbitrator decided that his conduct violated the company’s violence and harassment policy.

The arbitrator stated that the employee’s conduct was “juvenile and unworthy of a 12 year old, let alone a man in his 50s.  It also however had a goading, threatening quality to it.”

The arbitrator concluded, however, that the employee’s conduct was “more immature than intentionally threatening”.  Also, had the supervisor warned the employee right away or reported the incidents under the violence and harassment policy (he said that he had not reported because he “did not want to make trouble” and feared how the employee would react), the employee might have changed his ways.

Given that, and the employee’s 34 years of service, the arbitrator reinstated the employee with no back pay, resulting in a six-month suspension without pay.  The employee was given “one last opportunity to show he can conduct himself in a civil and respectful way in his workplace.”

Hinton Pulp, A Division of West Fraser Mills Ltd. v Unifor Local 855, 2014 CanLII 57678 (AB GAA)

Persistent mockery, intimidation of supervisor was “juvenile and unworthy of a 12 year old”, warranted 6-month suspension of long-term employee

Total fines now $1.24 million in Christmas Eve fatalities after swing stage company and director fined

The total of safety fines paid for the December 24, 2009 swing stage collapse fatalities is now $1,240,000 after Swing N Scaff Inc., the company that supplied the swing stage platform (a suspended work platform), was fined $350,000.00 and a director of Swing N Scaff was fined $50,000.00 under the Ontario Occupational Health and Safety Act.

Four parties have now been convicted and fined as a result of this tragic accident: Metron Construction Corporation, a director of Metron, Swing N Scaff and a director of Swing N Scaff.

The Ministry of Labour states, in its press release, that 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 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 was in good condition.

The director of Swing N Scaff 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.

Previously, Metron Construction 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.  Metron’s Criminal Code liability resulted from the actions of its site supervisor, who Metron admitted was a “senior officer” of Metron, so that his actions were taken to be the actions of Metron.  The site supervisor had directed and/or permitted six workers to work on the swing stage when he knew or should have known that it was unsafe to do so; directed and/or permitted the six workers to board the swing stage knowing that only two lifelines were available; and permitted persons under the influence of drugs to work on the project.

A director of Metron Construction was previously fined $90,000.00 under the 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.

The Ministry of Labour’s press release on the Swing N Scaff fine may be read here.

Total fines now $1.24 million in Christmas Eve fatalities after swing stage company and director fined

“It is not the Board’s role to chase” unrepresented employee: safety-reprisal complaint dismissed

The Canada Industrial Relations Board has dismissed a safety-reprisal complaint where the employee, representing himself, missed deadlines and failed to respond to CIRB correspondence.

The employee filed a complaint alleging that his employer took action against him for exercising his safety rights, contrary to the Canada Labour Code.  The employer said that the employee’s job performance was the reason for taking action against him.

The CIRB asked both parties for more focused submissions.  The employee did not provide his submission within the time frame set by the CIRB.  The CIRB then extended that time frame after the employee said that he had moved.  The employee then failed to open the CIRB’s registered letters or keep the CIRB apprised of any further changes in his address.

The CIRB quoted from a previous decision, Reid2013 CIRB 693 (CanLII), in which it had stated:

“As mentioned above, the Board is fully aware that Ms. Reid, like many unrepresented litigants, may not be familiar with the Code. But a complainant still has the ultimate obligation of going through his/her own material, including allegedly relevant documents, and drafting a complaint in accordance with the Regulations.  That obligation is not satisfied by filing hundreds of pages of documents and implicitly asking the Board to go through it and decide what, if anything, should form part of a complaint.”

The CIRB ultimately concluded:

“In this case, Mr. Shmig claimed in a discussion with the IRO that he never received the Board’s decision requesting more particularized pleadings. The IRO sent him another copy of the decision.  When Mr. Shmig failed to provide the requested pleading, he claimed in another discussion with the IRO that the emailed copy of the decision had never reached him.  Finally, after the Board granted Mr. Shmig an extension to file the requested particulars, Mr. Shmig failed to pick up two separate Board mailings which had been couriered to his last known address.

Ultimately, it is not the Board’s role to chase after a party for its pleading. The Board is satisfied that it provided Mr. Shmig with several opportunities to pursue his complaint. For whatever reason, Mr. Shmig chose not to do so.”

The employee’s complaint was therefore dismissed.

Shmig, 2014 CIRB 724 (CanLII)

“It is not the Board’s role to chase” unrepresented employee: safety-reprisal complaint dismissed

Alberta employer fined $80,000 following conveyor incident

An Alberta employer has been sentenced to a fine of $80,000 plus the 15% victim fine surcharge following a workplace incident which occurred in 2011 at its distribution center.

A worker was injured while bending down under a conveyor to plug in a portable weigh scale. As she bent down, she felt herself being propelled violently backward. A subsequent investigation determined that her hair had become entangled in the drive shaft under the conveyor. She sustained numerous injuries, losing part of her thumb and part of her hair.

At trial, the employer was convicted of two offences under the occupational health and safety legislation, the court finding that the employer had failed to establish the defence of due diligence. In its sentencing decision, the court considered the employer’s safety policies and its corporate commitment towards safety to be mitigating factors. However, the court noted that the employer had been convicted for failing to use all reasonable measures to ensure the safety of its workers who worked near the conveyor. Company officials had failed to recognize, over a four year period, that a large portion of the conveyor was unguarded. The court was also critical of the training given to workers about the dangers of conveyors. Thus, while the employer was concerned about safety, the court found that it had not been vigilant enough.

The court also considered the impact of the incident on the worker as increasing the gravity of the offence. However, the lack of a guilty plea was not treated as an aggravating circumstance. The court also inferred that the employer was remorseful based on the steps it had taken following the incident, and considered that a mitigating circumstance.

The court reviewed the sentencing jurisprudence but considered this case to be unique in relation to the fact that the employer’s oversight took place over four years and caused considerable pain and disfiguring injuries. Thus, a fine of $80,000 was considered appropriate.

This case serves as yet another example of the difficulty of successfully establishing a due diligence defence. It is also a reminder to employers to ensure they perform appropriate and thorough safety inspections and consider all aspects of the workplace that could potentially pose a danger to workers. This decision also demonstrates that while sentencing precedents are useful, the court is not bound by them and must consider all of the circumstances of the case in determining an appropriate sentence.

R. v. Value Drug Mart Associates Ltd., 2014 ABPC 255 (CanLII)

Alberta employer fined $80,000 following conveyor incident