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Employer breached OHSA, collective agreement by sharing employee’s medical information with another employer

An arbitrator has decided that an operator of a long term care facility violated both the Occupational Health and Safety Act and the collective agreement by sharing an employee’s medical information with another employer, without the employee’s consent.

The employee was a part-time dietary aid at the long term care facility, St. Patrick’s Home of Ottawa Inc.  After the employee advised that she required an accommodation in her other position at a different long-term care facility due to medical reasons, St. Patrick’s asked her to provide a medical certificate indicating her fitness and ability to do her job.

The other long-term care facility began to question whether the medical restrictions that she was presenting to them were legitimate.  The other long-term care facility then requested certain information about the employee’s employment at St. Patrick’s, including whether she had worked her regularly-scheduled shifts, had requested any workplace accommodations or provided any work-related restrictions.   St. Patrick’s gave the other facility that information, including a medical note that the employee had provided.  St. Patrick’s later acknowledged that information should not have been disclosed without the employee’s consent.

The arbitrator held that St. Patrick’s had violated sections 63(1)(f) and 62(2) of the OHSA:

“Section 63(1)(f) of this Act specifies that no person shall disclose any information obtained in any medical examination except in a form that will prevent the information from being identified with a particular person or case.  The copy of the note that this Employer gave to West End Villa contained medical information from the Grievor’s doctor that clearly identified the Grievor.  Further, section 62(2) of the Act mandates that no employer shall seek to gain access to a health record concerning a worker without the worker’s written consent, except by an order of the court or other tribunal or in order to comply with another statute.  The Grievor gave no consent to the release of the information or note and West End Villa neither requested the note nor had any legal authorization to receive it.  Since West End Villa had no right to seek the Grievor’s health information, this Employer had no right to provide it.  Therefore, the Agreed Facts reveal a clear violation of the Occupational Health and Safety Act.”

The arbitrator also found that the disclosure of the information violated the collective agreement in that it constituted “harassment”, which was defined in the collective agreement as, “any behaviour which denies and or undermines individuals’ . . .  dignity and respect, and that is offensive, embarrassing and humiliating to said individual.”  Lastly, the arbitrator held that the disclosure constituted the tort of “intrusion upon seclusion”.

The arbitrator ordered St. Patrick’s to comply with its own confidentiality policy and to pay the employee $1,000.00 in damages.

This case illustrates the increasing importance of privacy – particularly of medical information – in the workplace, and that privacy obligations can come from unexpected places, including the OHSA.

St. Patrick’s Home of Ottawa Inc. v Canadian Union of Public Employees, Local 2437, 2016 CanLII 10432 (ON LA)

Employer breached OHSA, collective agreement by sharing employee’s medical information with another employer

City wins suspension of MOL inspector’s “constructor” order

A city has won a suspension of a Ministry of Labour inspector’s decision that the city was a “constructor” under the Ontario Occupational Health and Safety Act on a watermain-improvement project.

The city was the “owner” of the project.  It had retained, for the project, a construction company which had assumed the role of constructor under the OHSA and was carrying out the duties of constructor on the project.

The city asked the Ontario Labour Relations Board to suspend the operation of the inspector’s Order that the city was the constructor.  The MOL opposed the suspension request, alleging that the city had retained a great deal of control over the project, including the timing of some of the work, and had control over the construction company and the police service (which performed some traffic control functions in connection with the project).  The MOL argued that because the city had such “control”, the city should also have the duties of constructor under the OHSA.

The OLRB suspended the MOL inspector’s Order pending the outcome of the city’s appeal challenging the inspector’s decision. The OLRB decided that the safety of workers on the project would be maintained because the construction firm was an “experienced and responsible entity” which was carrying out the duties of constructor on the project.  While the city may have requested and paid for the traffic control services provided by the police, it was at the construction company’s request that the city contacted the police and arranged for traffic control.  The construction company “more closely resembled” the constructor on the project.  Compelling the city to carry out the obligations of the constructor would cause it prejudice that it ought not to bear if it was not in fact the constructor.

City of Greater Sudbury v A Director under the Occupational Health and Safety Act, 2015 CanLII 86601 (ON LRB)

 

City wins suspension of MOL inspector’s “constructor” order

“The larger the corporation, the larger the fine”: A corporate defendant’s financial circumstances is a relevant sentencing factor for breaches of a regulatory scheme

A small, family owned and operated custom cabinet business was fined $75,000 plus the Victim Fine Surcharge of $11,250 after pleading guilty to failing to ensure, as far as reasonably practicable, the health and safety of a worker. The charges stemmed from a workplace incident in which a worker had slipped and caught his hand on a piece of machinery. The machine’s pressure sensitive mat safeguard that would have shut down the machine had been bypassed. It had been damaged approximately 3 years earlier but the employer chose not to replace it.

The impact with the machine caused the worker’s flesh to be peeled back and he also sustained a broken wrist. The injured worker had been trained to operate the machine and was aware of its safety features, including the fact that the safety mat was not operational.

The Court noted that the primary function of sentencing for regulatory breaches was deterrence; however, sentencing was still an individualized process requiring that all factors be considered, not just deterrence. The relevant factors included the financial circumstances of the corporate defendant. In the Judge’s view, the larger the corporation, the larger the fine. Conversely, when sentencing smaller corporations with more restrictive financial viability, the Court should apply a sentence that reflects that situation while still deterring offenders in similar circumstances from committing similar offences.

The other factors considered by the Court in its sentencing decision were:

  • The employer had no previous safety related offences;
  • The employer properly trained its employees and had regular safety training sessions;
  • The employer pled guilty, was remorseful and cooperative;
  • The employer recognized that it was accountable and an officer had been present in court during the proceedings;
  • The injuries sustained were at the lower end of the severity continuum;
  • Although a fine of up to $100,000 (as suggested by the Crown) would not devastate the employer, it would certainly impose a severe sting on the employer; and
  • While the employer was negligent in not repairing the safety mat, its conduct did not constitute gross negligence.

In light of these factors, the Court considered the Crown’s suggested amount of $100,000 to be too high. The Court determined that a fine of $75,000 was appropriate as that was a substantial and significant amount that would not be viewed as a slap on the wrist. It would be clearly felt by the employer and would serve as a warning for other similar offenders in similar circumstances.

R. v. The Kitchen Centre Ltd., 2016 ABPC 12

“The larger the corporation, the larger the fine”: A corporate defendant’s financial circumstances is a relevant sentencing factor for breaches of a regulatory scheme

Electrical contractor fined $537,500 after death of resident from faulty electrical work

An electrical contractor has been hit with a huge fine after its faulty electrical work led to a resident’s death.

The contractor had installed an in-floor heating system in the bathroom of a home.  The resident, an elderly man, fell on the floor in the bathroom and suffered second- and third-degree burns from the overheated floor.  He died in hospital.  The Electrical Safety Authority (Ontario) determined that the floor’s heat system sensor had not been installed, and the heating system was wired to an incorrect voltage level.

The electrical contractor pleaded guilty to three charges of violating the Ontario Electrical Safety Code: leaving an unsafe electrical condition; failure to procure connection authorization before use; and failure to apply for an electrical inspection.  According to the Electrical  Safety Authority, the fine was “the largest fine in the history of electrical contractor licencing in Ontario.”

The charges were not under the Occupational Health and Safety Act because they dealt with a hazard to the resident, not a worker.  The charges, and the fine, show that serious liability can result from multiple pieces of regulatory legislation when safety is neglected.

The Electrical Safety Authority’s press release may be found here.

Electrical contractor fined $537,500 after death of resident from faulty electrical work

Shot at in parking lot, employee awarded $5,000 in damages from employer despite WSIB coverage

A labour arbitrator has awarded a unionized employee $5,000.00 in damages from his employer – despite the fact that the employer was registered with the Workplace Safety and Insurance Board.

The employee worked at a municipal community centre.  On the night of the shooting, he and four other employees went outside at around 10:30 pm to warm up their vehicles before leaving.  They lingered near their vehicles for about five minutes.  A car that had been driving back and forth in front of the community centre stopped, and two men got out and started shooting at the five employees. One worker was shot in the leg and “extensively injured”, while the employee in question was not shot, though he suffered some injuries in his effort to escape.  He did not require any immediate medical attention and did not miss any work.  He did not file a claim with the WSIB.  He still worked at the community centre.

The arbitrator noted that subsection 26(2) of the Workplace Safety and Insurance Act provides that, “Entitlement to benefits under the insurance plan is in lieu of all rights of action” that a worker has against the employer because of an accident happening to the worker in the course of employment.

The arbitrator decided that if the employee made or could have made a claim to the WSIB for lost wages, pain and suffering and/or mental distress, then the Workplace Safety and Insurance Act would bar any claim – by grievance or otherwise – against the employer for damages.  However, the arbitrator held that the employee, who suffered no lasting workplace injury, permanent impairment or loss of work hours or income, could not have made a claim to the WSIB.  As such, the Workplace Safety and Insurance Act did not bar his grievance for damages.

The arbitrator was satisfied that there was a reasonable prospect that the shootings would not have taken place had the employer satisfied its obligations under the collective agreement and Occupational Health and Safety Act to provide a safe work environment for the workers.  As such, the arbitrator awarded the employee $5,000.00 for pain and suffering and mental distress.

While the facts of this case are unusual in that the employee was not entitled to WSIB benefits but did have pain and suffering and mental distress for which he was entitled to damages, the decision shows that in some rare cases, employees with WSIB coverage could still claim damages directly from the employer.

Re Toronto (City) and CUPE, Local 79 (Charles), 260 L.A.C. (4th) 304 (Ont. L.A.)

Shot at in parking lot, employee awarded $5,000 in damages from employer despite WSIB coverage

Employee stopped production line “to be difficult”, not due to safety issue: work refusal not justified

An employee who shut down a production line allegedly because two other employees were fighting, was not exercising a proper work refusal under the Occupational Health and Safety Act, the Ontario Labour Relations Board has decided.  His poor workmanship was also deliberate.

The employee pushed an “E-stop” button, and said he did so because he saw two coworkers fighting. He said that he saw punches thrown and a headlock.  He said that he pushed the E-stop button out of concern for one of the two employees’ safety.   He did not show up at a meeting the next day to discuss the incident. The employer then dismissed him.

The OLRB noted that under the OHSA, an employee may refuse to work due to workplace violence only when his or her own safety is at risk due to the violence – not the safety of a coworker. Here, the employee said that he was concerned about his coworker’s safety, not his own.  Also, the OLRB held that the two employees were not, in fact, fighting, but rather they were engaged in horseplay.  The employee could not have believed that their safety was in jeopardy.

The OLRB stated, “In light of the foregoing, I find that Mr. McNerney was angry with Ms. Campbell and he decided to be difficult by producing defective products and unnecessarily pushing the E-stop button. Given how unusual it was for an employee to produce so many defective seats during a shift, I find it more likely than not that Mr. McNerney’s poor workmanship was deliberate.”  The employee had no honest and good faith believe that a health and safety issue had arisen requiring him to push the E-stop button.

As such, the OLRB held that the employee had not been dismissed for raising safety issues. There was no violation of the OHSA.

McNerney v Integram Windsor Seating, 2015 CanLII 67646 (ON LRB)

 

Employee stopped production line “to be difficult”, not due to safety issue: work refusal not justified

Contractor loses lawsuit against city for alleged breaches of OHSA’s asbestos-disclosure rules

A construction contractor has lost its bid for damages from a city, relying on a little-used section of the Ontario Occupational Health and Safety Act that permits contractors to sue a building owner for damages for failing to disclose the presence of designated substances such as asbestos. The contractor’s lawsuit and appeal were both dismissed.

The contractor alleged that the City of Ottawa had failed to notify it that asbestos was present on the construction project site, and that as a result, the contractor’s workers had been exposed to asbestos.  The contractor claimed damages for administrative expenses (it’s president’s time dealing with the issue) and legal costs resulting.

The contractor relied on subsection 30(5) of the Ontario Occupational Health and Safety Act, which reads:

30. (5) An owner who fails to comply with this section is liable to the constructor and every contractor and subcontractor who suffers any loss or damages as the result of the subsequent discovery on the project of a designated substance that the owner ought reasonably to have known of but that was not on the list prepared under subsection (1).

Subsections 30(1) and (3) of the OHSA together require the building owner to provide the contractor with a list of designated substances at the project site.

The trial and appeal court decided that the contractor had not proven any damages.  The list of hours spent and work done by the contractor’s president to deal with the asbestos issue, was vague and general and was not suitable proof.  There was no evidence that the legal bill was ever submitted to or paid by the contractor.  As such, the contractor’s lawsuit was dismissed.

Lastly, the trial and appeal court were not prepared to grant a “declaration” that the City caused the unprotected exposure of the workers to asbestos or that the City was liable for damages incurred by the contractor and workers as a result of the exposure.  The court noted that the request was speculative as it was not known whether any of the employees would ever become ill as a result of the asbestos exposure and if so, whether they would start legal proceedings.  Also, any declaration might have an impact on the rights of employees who were not a party to the lawsuit between the contractor and the City.

Curoc Construction Ltd. v. Ottawa (City), 2015 ONCA 693 (CanLII)

Contractor loses lawsuit against city for alleged breaches of OHSA’s asbestos-disclosure rules

Employer’s request for post-incident alcohol and drug test was not justified where no sign of impairment: arbitrator

An employee responsible for a minor, although unusual, accident in a company parking lot was justified in refusing to submit to an alcohol and drug test, a labour arbitrator has found.

The employee was an electrician. His position was safety-sensitive. When backing up to park a vehicle, he backed into the only other vehicle in the parking lot.

The employer demanded that he submit to a post-incident drug and alcohol test. The employee refused, citing advice that he had received from his union.

The arbitrator found that nobody had thought that the employee was impaired. There were no signs of impairment.  After the accident, the employee sat through a half-hour investigative meeting and “could not give anyone in the meeting the slightest suggestion of impairment”.  Two managers, who were in the meeting, did not think he was impaired.  The managers concluded that he could drive home safely.  The cause of the accident was obvious: the employee’s carelessness, which the employee admitted.  The managers were “reasonably able to exclude the possibility that drug or alcohol impairment” may have caused the accident.

As such, the demand that the employee submit to an alcohol and drug test was not justified.

Jacobs Industrial and International Brotherhood of Electrical Workers, Local 353, 2016 CanLII 198

Employer’s request for post-incident alcohol and drug test was not justified where no sign of impairment: arbitrator

The Supreme Court of Canada grants leave to appeal in drug and alcohol policy matter

Drug and alcohol testing policies have long been of key importance for many employers, particularly those who have employees in safety sensitive positions. Now, the Supreme Court of Canada is set to consider drug and alcohol policy issues after it granted leave to appeal on a judgment released last summer. Read full article here.

The Supreme Court of Canada grants leave to appeal in drug and alcohol policy matter

Double (16-hour) shift was not prohibited by ESA or OHSA: arbitrator

A labour arbitrator has held that the practice of unionized long-term care home employees voluntarily working two 8-hour shifts in succession did not violate the Ontario Employment Standards Act or Occupational Health and Safety Act.

With respect to the ESA, the arbitrator held that the practice did not violate section 18(1) which required that employers “give an employee a period of at least 11 consecutive hours free from performing work in each day.” That was because, according to the arbitrator, s. 18(1) permitted an employee to voluntarily work more than 13 hours in a day; as such, the collective agreement provision permitting double shifts was a greater right or benefit and thus did not violate the ESA.

The issue under the OHSA was whether the employer, by permitting employees to work double shifts, was violating its “general duty” under s. 25(2)(h) of the OHSA to take all precautions reasonable in the circumstances for the protection of a worker, due to safety issues that could result from employee fatigue. The arbitrator noted that there was “no meaningful correlation” between workplace accidents or resident complaints and employees working double shifts. Also, the practice of double shifts was a reasonably-accepted industry standard. As such, the general duty under the OHSA did not require the employer to ban double-shifts.

The arbitrator stated, though, that employees should voluntarily assess, before they take on an added shift, whether they are too tired to work safely.

The Regional Municipality of Durham, 2016 CanLII 8803

Double (16-hour) shift was not prohibited by ESA or OHSA: arbitrator

No contempt in the face of the “voluminous” British Columbia Occupational Health and Safety Regulation

In the wake of some recent high-profile workplace accidents, 2015 legislative amendments to the Workers Compensation Act were designed to give WorkSafeBC more tools to enforce its mandate.  Among other things, WorkSafeBC can now apply to the Court for an injunction restraining an employer from operating in an industry where it has contravened the Occupational Health and Safety Regulation and where it is likely to continue doing so.  This, and other orders, are generally enforced by way of contempt proceedings.

However, a recent decision of the British Columbia Supreme Court demonstrates that where WorkSafeBC seeks the assistance of the courts, a finding  that parties are in contempt will not necessarily follow.  In late February 2016, the British Columbia Supreme Court declined to find two principals of organizations engaged in asbestos abatement, which had been the subject of as many as 244 orders by WorkSafeBC, in contempt of a 2012 order that they comply with the entire Act and Regulation.

Although written reasons for the decision have not yet been provided, Mr. Justice Macintosh’s decision appears to turn on an assessment that the 2012 order to comply with the entire legislation and associated regulations was too broad, and, in particular, that the Regulation was too “voluminous”.  This decision has many stakeholders in the province wondering about its broader implications, and WorkSafeBC has already indicated that it will appeal once written reasons are released.  According to WorkSafeBC, the basis for its appeal will be that it requires clarity from the Court of Appeal as to whether the size and complexity of a regulation can be a defence to a contempt application.

The history to this case is lengthy, and WorkSafeBC has alleged that the employer has repeatedly violated the Act and Regulations, putting individuals at risk of asbestos exposure.  By 2012, WorkSafeBC sought the assistance of the B.C. Supreme Court and sought an order that the organizations and their principals comply with the entire Act and Regulations.  The order was granted, and in the months following, the principals and some of their companies claimed against WorkSafeBC and others in Provincial Court, Superior Court, and at the British Columbia Human Rights Tribunal, alleging, among other things, that WorkSafeBC and certain employees unfairly targeted the principals because of their race, colour, ancestry and place of origin.  And further, that WorkSafeBC and others unduly interfered with the business due to the imposition of a mentoring program, and engaged in malfeasance in public office, discrimination contrary to the Civil Rights Protection Act, slander and defamation, and intentional interference with contractual relations.  The complaint under the Human Rights Code has since been dismissed by the British Columbia Human Rights Tribunal.

By late 2013, WorkSafeBC was back at Supreme Court seeking an order that the principals were in contempt of the 2012 order, which was granted in part.  However, further attempts to address alleged non-compliance with the Act and Regulations appear to have been stymied by the February 2016 decision, and the reasons for this most recent decision in the ongoing dispute, and WorkSafeBC’ s expected appeal, are therefore highly anticipated.

WorkSafeBC’ s comments on the decision can be found here: http://www.worksafebc.com/news_room/news_releases/2016/new_16_03_16.asp?_ga=1.237658628.562962873.1448414730 and here: http://www.worksafebc.com/news_room/news_releases/2016/new_16_03_02.asp

The author thanks Amelie Boultbee, articling student with Dentons in Vancouver, for her assistance with this article.

No contempt in the face of the “voluminous” British Columbia Occupational Health and Safety Regulation

Work refusal was motivated by employee’s dislike of work assignment, not by safety: when full disciplinary record considered, employee was fired for cause

An arbitrator has upheld the dismissal of an employee who tried to use the Occupational Health and Safety Act’s work refusal provisions to avoid undesired work assignments.

The employee worked for the City of Hamilton cutting grass, picking litter and doing road maintenance. He had a long history of illnesses and accidents and had certain work restrictions.  On one particular day, the employee refused to pick litter on the basis that his truck did not have an air-ride seat which he said was required by his work restrictions.  The employee then failed to attend for work for several weeks afterwards.  After another incident later in the year, the employer dismissed the employee.

The union grieved the dismissal. The arbitrator decided that the work refusal was motivated by the employee’s dislike of the work assignment rather than by any pain he was feeling or fear for his health and safety. There was no indication that the employee saw his physician or chiropractor due to the pain.   He did not call in sick, nor did he go off work and file a WSIB claim, a procedure “with which he was well familiar”.  He did not mention the OHSA on the date of his work refusal.  He did not contact the Ministry of Labour until two months later, after the WSIB had determined that the work that he refused was appropriate given his restrictions.  Also, he had frequently been assigned a vehicle without air-ride seats in the past and had not objected.

As such, the work refusal was not based on an honestly-held belief that his health or safety was in jeopardy, nor was it objectively reasonable. A one-day suspension was  justified for the work refusal alone.

Further, there was no good reason for the employee not to return to work the next day, and his failure to do so justified an additional five-day suspension.  After he received another suspension later in the same year, the employee’s overall discipline record justified his dismissal.

City of Hamilton, 2016 CanLII 9065

Work refusal was motivated by employee’s dislike of work assignment, not by safety: when full disciplinary record considered, employee was fired for cause

General contractor, not present on job site, was still responsible for subcontractor’s safety: labour board

A general contractor on a residential project was responsible for the safety of its subcontractors even though it was not on site at the time of an incident.

The general contractor objected to two compliance orders issued to him under the Nova Scotia Occupational Health and Safety Act, arguing that it was “not his work that was at issue, and therefore not his responsibility”.

The general contractor had entered into a handwritten contract with a homeowner to do renovation work. The contract included the following among 11 areas of work to be done: “supply general contractor services for chimney repair re a separate service to this contract”.  He then obtained four quotes for the chimney work and retained one subcontractor to do that work.  He showed the subcontractor around the property and gave him a key so he could access the bathroom.

The Labour Board found that there was an agreement that the subcontractor could use staging that the general contractor had on site as part of his contract, and that the general contractor would act as “paymaster” for the subcontractor.

An occupational health and safety officer with the Nova Scotia government visited the job site in response to an anonymous complaint. He noted a number of safety issues including roofers working without adequate fall protection on improperly erected scaffolds.  He issued compliance orders to the general contractor.

The Labour Board held that the compliance orders were justified. The officer had reasonable grounds to believe that it was the general contractor’s worksite over which he had overall responsibility.  The handwritten agreement supported this: it referred to “general contractor” duties.  The subcontractor and his employee stated that they regarded the general contractor as their “boss”.

The Labour Board determined that the general contractor was “inclined to distance himself from [the subcontractor] after the situation became problematic and he realized that he was going to be held partly responsible. Had the chimney work turned out well, [the general contractor] might well have taken credit for it.”

Yvan Haince v. Director of Occupational Health and Safety, 2016 NSLB 28 (CanLII)

 

General contractor, not present on job site, was still responsible for subcontractor’s safety: labour board

U.S. OSHA orders aviation firm to reinstate dismissed pilot fired for raising safety concerns – damages could exceed $500,000

A U.S. pilot who raised a number of safety concerns has won reinstatement to his job, and years of lost wages.

The pilot had complained about safety concerns at work ranging from missed drug tests for pilots to poor recordkeeping.

The U.S. Occupational Safety and Health Administration (OSHA), in its press release on the case, said that the company, which formerly provided “medevac” services to a hospital in Alaska, had suspended and then fired the pilot and “ostracized” him amongst the “close-knit community” for raising safety concerns.

OSHA ordered the company to reinstate the pilot, pay him lost wages back to 2012, plus $100,000 in compensatory damages for pain suffering and mental distress. His total damages could exceed $500,000.

OHSA enforces “whistleblower” provisions under a number of U.S. statutes.

OHSA’s press release may be read here.

U.S. OSHA orders aviation firm to reinstate dismissed pilot fired for raising safety concerns – damages could exceed $500,000

After Co-Worker Washes Feet With Vinegar In Cubicle and Makes Threatening Statement, Employee Entitled to Transfer to Different Building

A Quality and Service Manager working for the Parole Board of Canada is entitled to work in an entirely different building from a co-worker – identified only as “Mr. X” – because she suffered from stress caused by Mr. X’s behaviour, a grievance adjudicator has held.

In 2009, Mr. X was moved to the cubicle next to the worker’s office. The worker alleged that Mr. X constantly distracted her during the workday by loudly unpacking his bag in the morning, eating strong smelling leftovers, walking barefoot in the office, making loud guttural noises, passing gas, swearing, and washing his feet with vinegar in his cubicle. The worker also testified that on one occasion when she was on the telephone, Mr. X was making so much noise that she stood up and hit their common wall to get him to stop. Mr. X then entered her office and said “What is your problem?… there is a line on the floor and do not cross that line because I do not know what will happen…”.

The worker testified that she complained to her supervisor, and asked that one of them be moved. The employer offered mediation as a method of resolving the conflict between the two workers, but the worker refused. The worker moved offices a few months later but she was still bothered by Mr. X’s behaviour when he passed by her new office location.

Despite the worker’s office move, 8 months later, Mr. X filed a harassment complaint against her, which included allegations that she called him a pig. To read the National Post’s article on Mr. X’s harassment complaint, click here.

Once the worker learned of the harassment complaint against her, she filed a harassment complaint against Mr. X and went on sick leave from September 2011 until March 2013. During that time, the employer offered the worker the accommodation of an office on a floor that Mr. X could not access. The worker refused, claiming there was a risk that Mr. X could access the floor by riding in an elevator with someone who did have access.

In or around April 2012, the worker filed a grievance against her employer, alleging that it did not comply with its duty to accommodate because she had medical notes stating she was fit for work, but not at the building in which Mr. X worked, and she did not receive an offer of accommodation that met her medical requirements.

The worker went on secondment in March 2013 for one year (in another building), at the end of which she was supposed to return to her position with her employer in the same building as Mr. X. The worker refused to return to work because, according to her, the corrective measures sought in her grievance (teleworking or working in a different building) had not been granted.

At the hearing, the worker tried to show that Mr. X’s abusive behaviour caused her emotional stress that affected her memory and her capacity to concentrate, and that she did not feel safe working in the same building as him. The Adjudicator considered whether the employer’s proposal to move her to another floor constituted a reasonable accommodation. The Adjudicator found that, in light of the testimony of the employee’s doctor that she had a real and genuine fear and that her medical condition would not improve if she returned to the workplace, even on a different floor, the employer’s proposed accommodation was not reasonable. Further, the Adjudicator found that the employer did not satisfy her that it was absolutely necessary for the worker return to that workplace.

The Adjudicator ordered the employer to move the worker to a different building, and to compensate her for the wages and benefits she lost during her sick leave.

Emond v. Treasury Board (Parole Board of Canada), 2016 PSLREB 4 (CanLII)

After Co-Worker Washes Feet With Vinegar In Cubicle and Makes Threatening Statement, Employee Entitled to Transfer to Different Building

Teachers’ union fighting for right to refuse work due where students violent

A student’s violent acts in a classroom have led to a dispute about the circumstances in which teachers may engage in a work refusal for safety reasons.

The student was described as having a “history of violent behavior”.  He became violent one morning by hitting and pushing staff and other students and kicking chairs.  The student was sent home, but when he returned to class, the teacher said that she did not feel safe and she was removed from the classroom.  Apparently a Ministry of Labour inspector was called in and decided not to make an order respecting the teacher’s alleged work refusal.   The union challenged that decision before the Ontario Labour Relations Board. The inspector asked the OLRB to dismiss the case based on oral submissions.

The inspector relied on section 3. 3 of Regulation 857 (“Teachers) under the Ontario Occupational Health and Safety Act which provides that the work refusal provisions of the OHSA do not apply to “a teacher where the circumstances are such that the life, health or safety of a pupil is in imminent jeopardy.” The inspector argued that, therefore, a teacher may refuse to work only where he or she has reason to believe that workplace violence is likely to endanger himself or herself, but that if the violence is caused by a student, there would invariably be a risk to other students and therefore the teacher would have no right to refuse to work.

The OLRB held that it required further evidence before making a decision on the case.  In particular, the OLRB required evidence of whether a student was “in imminent jeopardy”, which could not be determined without a full hearing.  The OLRB decided to send the case to a full hearing.

Toronto Elementary Catholic Teachers / Ontario English Catholic Teachers Association v. Toronto Catholic District School Board, 2016 CanLII 6786 (ON LRB)

Teachers’ union fighting for right to refuse work due where students violent

MOL’s incident-reporting training Order to mining company not suspended

A Ministry of Labour compliance Order issued against a mining company for allegedly failing to report an “uncontrolled fall of ground” should not be suspended pending the outcome of the employer’s appeal of that Order, the Ontario Labour Relations Board has decided.

The Mines and Mining Plants regulation under the Ontario Occupational Health and Safety Act requires that an uncontrolled fall of ground that causes damage to equipment or the displacement of more than 50 tonnes of material must be reported to the Ministry of Labour.

A Ministry of Labour inspector concluded that there had been a fall of ground in a stope that caused damage to a scoop tram, and that the employer had not reported it to the Ministry. The inspector Ordered the employer to ensure that its supervisors were trained in reporting falls of ground under the Regulation.

The employer appealed the Order and asked the Ontario Labour Relations Board to suspend the operation of that Order pending the appeal.  The OLRB refused to suspend the Order, holding that suspending the Order would likely endanger worker safety because if accidents are not reported, the Ministry of Labour will not be able to investigate and identify any hazards.  Also, the OLRB decided that a refusal to suspend the Order would have little effect on the employer because the employer already provided training to its supervisors so it would not require significant effort to train supervisors on incident reporting.

Employers often consider appealing Ministry of Labour Orders after an incident or accident, anticipating that the appeal is necessary in light of possible charges under the Occupational Health and Safety Act.  The cost-benefit of filing such appeals must be carefully considered in light of the possibility of losing the appeal.

Glencore Canada Corporation v Mine, 2016 CanLII 2839 (ON LRB)

MOL’s incident-reporting training Order to mining company not suspended

Court upholds arbitrator’s imposition of 24-hour shift for firefighters, despite city’s safety concerns

In a previous post, we reported that an arbitrator had accepted a union’s request to impose 24-hour shifts for the City of St. Catharines’ firefighters, in spite of the city’s safety concerns.

A court has now upheld the arbitrator’s decision.  The court held that the city’s concerns about health and safety risks and operational considerations were not supported by evidence of actual problems with 24-hour shifts.  The court also decided that it was reasonable for the arbitrator to consider the fact that 82% of all firefighters had “adopted and/or adapted to” the 24-hour shift, even though only one third of fire services had adopted the 24-hour shift.  (This was because many of the largest fire services had adopted the 24-hour shift but many of the smaller fire services had not).

The evidence before the arbitrator was that firefighters in St. Catharines had gotten uninterrupted sleep during 80% of their night shifts.  Further, the evidence suggested that it would be rare that a firefighter would not get any sleep during a 24-hour shift.  As such, the arbitrator decided that the city’s concern that firefighters would be sleep deprived, and that the sleep deprivation would compromise safety, was not justified.

The Corporation of the City of St. Catharines v The St. Catharines Professional Fire Fighters’ Association, 2015 ONSC 6046 (CanLII)

Court upholds arbitrator’s imposition of 24-hour shift for firefighters, despite city’s safety concerns

Waiver was unenforceable under WSIA, employee entitled to sue employer after workplace injury

An Ontario employee has won the right to sue his employer for damages for an injury suffered at work.  An appeal court decided that a waiver he signed was, due to provisions in the Ontario Workplace Safety and Insurance Act, unenforceable.

The National Capital Kart Club held a go-cart event at which the employee acted as race director.  The employee was injured after one go-kart driver crashed into hay bales.  The employee sued his employer, the go-kart driver and others.  The defendants argued that a waiver, which the employee had signed, released them from any damages.

The employer was not required, under the Workplace Safety and Insurance Act, to be registered with the Ontario Workplace Safety and Insurance Board.  Therefore the employee did not have workers compensation coverage.

The employee, on appeal, relied on the little-known Part X of the Workplace Safety and Insurance Act.  Part X contains section 114(1) which, the employee argued, made the waiver unenforceable.  That section applies to workers whose employer is not registered, and not required to be registered, with the WSIB:

114. (1) A worker may bring an action for damages against his or her employer for an injury that occurs in any of the following circumstances:

1. The worker is injured by reason of a defect in the condition or arrangement of the ways, works, machinery, plant, buildings or premises used in the employer’s business or connected with or intended for that business.

2. The worker is injured by reason of the employer’s negligence.

3. The worker is injured by reason of the negligence of a person in the employer’s service who is acting within the scope of his or her employment.

The Court of Appeal for Ontario held that it was contrary to public policy to allow employers to have employees “contract out” of Part X of the Workplace Safety and Insurance Act (that is, sign a waiver giving up their rights, under Part X, to sue their employer for certain workplace injuries).  As such, the waiver was unenforceable and the employee’s lawsuit could proceed.

Employers that are not registered with the WSIB, and not required to be registered, should review their use of waivers – including waivers for company events.  As a result of this decision, waivers signed by employees will not be enforceable to prevent the employee from suing the employer for certain injuries, including injuries caused by the employer’s negligence.

Fleming v. Massey, 2016 ONCA 70 (CanLII)

 

Waiver was unenforceable under WSIA, employee entitled to sue employer after workplace injury

Last chance to register: Join us on February 16 – Webinar on Key OHS Cases from 2015

Don’t miss out on a complimentary webinar on Key OHS Cases from 2015.

Dentons’ Adrian Miedema and Chelsea Rasmussen will discuss key OHS cases from 2015. Topics will include:

  • Privilege in accident investigations
  • Metron update
  • Workplace violence
  • Marijuana use
  • OHS experts
  • Post-accident fixes

Webinar Details
February 16, 2016
12:00 – 1:00 p.m.

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Last chance to register: Join us on February 16 – Webinar on Key OHS Cases from 2015