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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

“Zero tolerance”, automatic suspension approach to safety violations criticized, written warning substituted

Employers are increasingly taking a “zero tolerance” approach in which a minimum level of discipline – whether a suspension or dismissal – is imposed for certain serious safety violations. In a recent case, an arbitrator criticized the approach as unfair to the employee.

Plant security, conducting a random vehicle search as the employee left the premises, found a partially-consumed bottle of flavoured vodka beneath some camping equipment in the trunk of the vehicle.  The employee co-operated in the search, expressed surprise at the presence of the bottle, and voluntarily submitted to drug and alcohol testing, the results of which were negative.

The employee explained that he had borrowed his wife’s vehicle when his vehicle would not start, and that his daughter had previously borrowed his wife’s vehicle for a camping trip and had apparently not unpacked the trunk. He confirmed this on a call to his daughter in the presence of plant security. He said that he was unaware that the bottle was in his trunk when he drove to work.  The employer admitted, at arbitration, that it had no reason to disbelieve the employee.

The company suspended the employee for three days.

The company said that it had a zero tolerance policy on possession of alcohol on plant property, calling for a minimum three-day suspension.  The company’s “Rules of Conduct” stated that “Possession and/or consumption of alcohol and/or illicit drugs on Company property” would be “subject to severe discipline, up to and including discharge”.  All parties agreed that the workplace was safety-sensitive.

The arbitrator referred to “zero tolerance in the broader sense of requiring that each and every incident be investigated and addressed”, in contrast to zero tolerance “in the narrow sense of an automatic penalty for every violation regardless of the circumstances.”  He stated, “Zero tolerance in the latter sense has been held to be inconsistent with the just cause standard, so that a rule that would otherwise pass the KVP test must fail on the first criterion of consistency with the collective agreement”.

In conclusion, the arbitrator agreed that the company had just cause to discipline the grievor for violation of the rule against possession of alcohol on company property.  He concluded, “I accept that in the interest of workplace safety the Company is justified in adopting an approach of zero tolerance for breaches of that rule, to the extent that each and every incident is to be investigated and appropriate discipline imposed. I reject the imposition of an automatic penalty of suspension without regard to the totality of the circumstances as inconsistent with the just cause standard set out in the collective agreement.”

U.S. Steel v United Steelworkers, Local 1005, 2014 CanLII 50003 (ON LA)

“Zero tolerance”, automatic suspension approach to safety violations criticized, written warning substituted

Fake e-mail to other employees results in criminal mischief conviction

An Ontario employee has been convicted of criminal mischief after sending a fake e-mail to fellow employees, degrading another co-worker.

The employee, apparently upset that the co-worker rejected his request that they be more than friends, sent an e-mail to nine other employees, purportedly from the female co-worker. The e-mail degraded the co-worker professionally, sexually and physically.

The employee pleaded guilty to criminal mischief.

The employee also pleaded guilty to separate criminal harassment charges, apparently unrelated to the workplace. He received a suspended sentence and two years’ probation on the mischief charge, and 90 days’ imprisonment (in addition to 2 months’ time served) on the criminal harassment charge.

R. v. Dewan, 2014 ONCA 755

Fake e-mail to other employees results in criminal mischief conviction

Failing to correct hazards, pay OSHA fines gets U.S. business owner taken into custody

An Illinois business owner has been taken into custody after his business failed to correct serious trenching hazards and pay Occupational Safety and Health Administration penalties.  The case illustrates the personal risk to business owners and executives who neglect occupational health and safety legislation.

An April 2013 statement from OSHA said that the business owner had been cited for “seven safety violations, including three willful, for failing to protect workers from cave-ins and moving soil and chunks of asphalt during trenching operations.”

A U.S. judge granted a motion filed by the U.S. Secretary of Labor against the owner, a sewer and water contractor.  OSHA states the business owner had a “long history of failing to comply with OSHA standards and orders of the independent Occupational Safety and Health Review Commission”.

OSHA reports that the court had previously issued an enforcement order against the owner and when he failed to comply, the court held him in contempt.  Then, after receiving no response from the owner, the court granted the Secretary of Labor’s motion to take “coercive actions”, ordering him placed into the custody of the Attorney General.

OSHA says that the owner will remain in custody until he has either fully complied with the court’s enforcement order or demonstrated that he is unable to comply.

OHSA’s statement on this matter may be read here.

Failing to correct hazards, pay OSHA fines gets U.S. business owner taken into custody

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Trucker who punched customer in the mouth was fired for cause

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

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

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

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

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

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

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

Trucker who punched customer in the mouth was fired for cause

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

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

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

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

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

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

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

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

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

Owner/developer was not responsible for civil damages sustained in a workplace incident 20 years ago

Over 20 years after a workplace incident that seriously injured a worker, the Alberta Court of Queen’s Bench has dismissed the worker’s civil action against a developer.

The worker had been working on a rooftop of a condominium conversion project in March 1994 when he slipped on an icy roof and fell through a piece of plywood covering a hole cut through the roof for a skylight. The worker sustained serious injuries and was rendered a paraplegic. A report from Alberta OHS prepared following the incident noted several deficiencies at the work site but charges were not laid.

The worker commenced a civil action against three parties thought to be outside the workers’ compensation scheme. Two of those parties were ultimately let out of the action after the Court determined that they did fall within the workers’ compensation scheme. The remaining defendant was the owner of the property and the developer of the project. The worker alleged that the developer was liable for the incident on the basis of negligence in the development and supervision of the project, vicarious liability for the project manager, and breaches of the Occupier’s Liability Act.

One of the aspects considered by the trial judge was the impact of the statutory requirements under Alberta’s Occupational Health and Safety Act (“OHSA”). The Court confirmed that while a breach of the OHSA could inform on the reasonable standard of care, it could not create an enforceable duty. Further, the evidence did not establish that the OHSA had been breached as it did not impose any duties on an owner/developer. The OHSA in force at the time of the incident (RSA 1980) has since been amended but while many aspects of the legislation have since changed, the current OHSA also does not impose any duties on an owner directly, unless the owner is considered the prime contractor.

Ultimately, the Court found that while the developer did owe a duty of care to the worker, that duty was limited in scope and was restricted to the selection of a competent project manager. The developer was not responsible for supervising safety at the work site. The court found that the developer’s selection of the project manager was reasonable and satisfied its duty of care to the worker. Further, the Court determined that the project manager’s relationship to the developer was that of an independent contractor such that there was no basis for a finding of vicarious liability. The Court also dismissed the worker’s claim that the developer was liable under the Occupier’s Liability Act on the basis that the developer had exercised reasonable care and supervision of the project manager.

The Court did however proceed to find (in obiter) that the project manager was negligent on the basis that it had: failed to keep the roof clear of ice and snow and failed to ensure that an appropriate cover was designed and appropriately secured.

While the developer in this case was not found liable, this case serves as an important reminder of the importance of ensuring that the requirements under the OHSA are met, and notes that in certain cases, the failure to do so may expose parties which are outside of the protection of the workers compensation scheme to damages in a civil action.

Heikkila v. Apex Land Corporation, 2014 ABQB 589 (CanLII)

Owner/developer was not responsible for civil damages sustained in a workplace incident 20 years ago

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Goghari v. Saarela, 2014 BCSC 1667 (CanLII)

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

B.C. Appeal Court Clarifies Workplace Accident Reporting Obligations

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

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

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

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

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

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

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

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

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

B.C. Appeal Court Clarifies Workplace Accident Reporting Obligations