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Work refusal due to second-hand smoke was not properly investigated: arbitrator

A correctional officer with sinusitis and sensitivity to second-hand smoke was entitled to have her work refusal investigated by prison management, an arbitrator has decided.

Although the prison was a non-smoking facility, prisoners would smuggle in contraband cigarettes. There was an “informal arrangement” in place under which the correctional officer could be moved to a different area of the prison if she detected second-hand smoke.

At the time of her work refusal, there was labour unrest at the prison including “mass work refusals”. She refused to work because she “believed that she would be exposed to second-hand smoke”.  She was directed to wait in the lunchroom, where she waited several hours and heard nothing from management.  She, however, made no concerted effort to contact management about the status of her work refusal.

The arbitrator stated:

” . . . I fail to see why the Employer could not have initiated and completed an investigation of CO Gough’s work refusal during the course of her 12-hour shift on September 7, 2014.  It is not clear to me for example why a stage 1 investigation could not have been conducted by the Employer later in the afternoon, rather than the information gathering meeting that was held by DS Large.  CO Gough’s single work refusal was not that complicated and I would have thought that an investigation of it would have been relatively brief and could have been completed before the end of her shift.  In considering all of the circumstances of that day, I find that the Employer’s failure to conduct an investigation of CO Gough’s work refusal on September 7, 2014, was not reasonable and that this failure amounts to a contravention of section 43 (3) of OHSA.”

The arbitrator, however, rejected the union’s argument that the way the employer handled the work refusal constituted harassment.  There was no evidence of bad faith on the part of the employer.

Lastly, the arbitrator decided that the proper remedy was simply “declaratory relief”: a declaration from the arbitrator that management failed to investigate the work refusal and thereby violated the Occupational Health and Safety Act.  However, the correctional officer did not experience any harm that would justify an award of monetary damages.

Ontario Public Service Employees Union (Gough) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)


Work refusal due to second-hand smoke was not properly investigated: arbitrator

Christmas party incident of sexual harassment leads to dismissal, then reinstatement, of firefighter

A male firefighter who had been “drinking heavily” has won reinstatement to his job after being fired for sexually harassing a female coworker at the fire department’s Christmas party.

The Christmas party was held at a restaurant. The male firefighter, a Captain at a fire station, told the female colleague that he thought she would get pregnant if she transferred to his fire station.

The female colleague later alleged that he had said that she would get raped and become pregnant if she transferred to his fire station.  The arbitrator did not accept this allegation and concluded that the female firefighter had misheard or misunderstood the male firefighters.  The union, however, admitted that if the arbitrator found that the male firefighter had threatened the female firefighter with rape, the City would have just cause to fire him.

The arbitrator stated:

“I accept the Grievor’s evidence that he does not recall using the word [“rape”] and it would not be something that he would say. I acknowledge that the Grievor had a number of drinks that night and was being offensive. But the Grievor’s comments were more directed towards Firefighter A [the female firefighter] being involved socially or sexually with other firefighters, and not directed at Firefighter A being assaulted.

“While it is true that the Grievor clearly mentioned Firefighter A getting pregnant, he was also talking about rumour and gossip surrounding her relationship with other firefighters.”

According to the arbitrator, even if the male firefighter had used the word “rape”, there was clearly no intention of uttering a threat, and the female firefighter testified that she did not believe that the male firefighter was threatening to rape her.  The arbitrator stated, “I believe it is more probable than not that the Grievor only made some offensive comments about Firefighter A’s involvement with Firefighter Hefferman.”

In the end, the arbitrator reinstated the male firefighter with a three-month unpaid suspension, and demoted him to the rank of first class firefighter for a period of time to be agreed by the parties. The arbitrator also ordered that the male firefighter participate in “sensitivity and anti-harassment training”.

Corporation of the City of Brampton v Brampton Professional Firefighter’s Association, Local 1068, 2016 CanLII 87624 (ON LA)


Christmas party incident of sexual harassment leads to dismissal, then reinstatement, of firefighter

Subway operators fighting decision to staff trains with only one operator, claiming unsafe

Three Toronto subway operators engaged in a work refusal after the Toronto Transit Commission decided to staff subway trains with only one operator (instead of two).

Their union is now fighting a Ministry of Labour inspector’s decision that the staffing arrangements were “not likely to endanger” and therefore did not justify the work refusal under the Occupational Health and Safety Act.

The union appealed the MOL inspector’s decision to the Ontario Labour Relations Board, and also grieved the TTC’s one-operator decision under the collective agreement.

The union asked to adjourn the OLRB appeal pending the outcome of the grievance proceedings. The employer opposed the adjournment. The OLRB granted the adjournment due to the grievance proceedings.   Although it was unclear as to whether the issues before the OLRB and the grievance arbitrator were the same, the OLRB stated that if the arbitrator ultimately decided not to hear aspects of the grievance that overlap with the OLRB appeal, the OLRB would relist the OLRB appeal for hearing.

We will continue to monitor the reported decisions in this case and will provide updates on this blog.

Amalgamated Transit Union, Local 113 v Toronto Transit Commission, 2016 CanLII 90788 (ON LRB)


Subway operators fighting decision to staff trains with only one operator, claiming unsafe

Trial judge’s misapprehension of the evidence results in new trial for workplace fatality

We previously posted about the trial decision in R. v. Precision Drilling Ltd., 2015 ABPC 115 (CanLII), where the court found the employer guilty of two charges arising from a workplace fatality at a drilling rig. The employer was convicted of failing to ensure the safety of the worker, and failing to eliminate an identified hazard. The employer appealed the convictions.

At trial, one of the issues was the question of industry standards, in particular, the use of an interlock/warning device. On appeal, the court noted that the trial judge had correctly stated that compliance with industry standards and legislation would not, of itself, be enough to establish due diligence. In this case, the appeal court found that the evidence was that the employer did follow industry standards. The trial judge however found that the interlock device was an engineered solution in place with other industry competitors, that could have been used to avoid the accident. The trial judge relied on this in concluding that the employer had not established the defence of due diligence.

The appeal court found that the trial judge’s conclusion about the competitor’s use of the interlock device was contrary to the evidence. In fact, the evidence at trial was that only one competitor had an interlock device on one rig, and that rig was a different type of rig from the rig in question. Further, the Occupational Health and Safety inspectors were not aware of the interlock device prior to the accident. Therefore, the appeal court determined that the trial judge’s misapprehension of the evidence was a palpable and overriding error.  It also found that the trial judge made a number of additional errors in the treatment of the evidence which undermined the verdict.

Further, while the appeal court did not find any error in the trial judge’s decision to admit evidence of the employer’s post-incident conduct at trial relating to its development and use of an interlock device after the accident, the trial judge’s use of that evidence was not supported by the evidence. The appeal court found that, in addition to the error about the industry’s use of the interlock device, there was no evidence that the competitor’s “small bit of common-sense engineering” had an effect on the drilling industry. The interlock device had not been adopted in the Occupational Health and Safety Code and government inspectors did not shut down rigs that did not have the interlock device.

The appeal court allowed the appeal on both counts, setting aside the trial verdicts. Because there was admissible evidence on each of the elements of the charges, rather than entering an acquittal, the appeal court ordered a new trial.

R. v. Precision Drilling Canada Ltd., 2016 ABQB 518 (CanLII)


Trial judge’s misapprehension of the evidence results in new trial for workplace fatality

Labour Board dismisses safety complaint filed 2.5 years after the fact

A worker who filed a safety-reprisal complaint 2.5 years after the events complained about has had his complaint dismissed for delay.

The worker’s complaint related to events that took place in June of 2013.   He admitted that he had not been disciplined in respect of those events but said that he still may be.

The Ontario Labour Relations Board dismissed his complaint due to delay, stating that 2.5 years was an unreasonable delay “by any measure”.  Further, since the employee had not yet been disciplined, his complaint was premature.  In addition, the employee had agreed to his reassignment to a new location so he could not now complain that the reassignment was punishment for raising safety issues.

There is no “limitation period” for filing a complaint with the OLRB claiming reprisal for raising safety issues, but this decision shows that the OLRB will nevertheless throw out complaints that are filed too late.

John Nahirny v Liquor Control Board of Ontario, 2016 CanLII 88256 (ON LRB)


Labour Board dismisses safety complaint filed 2.5 years after the fact

Having failed to obtain and review proper operating manual for machine, employer and supervisor convicted under OHSA

An employer and supervisor who failed to obtain an operator’s manual for a rip saw, and therefore failed to follow it, have been found guilty of offences under the Ontario Occupational Health and Safety Act.

The charges resulted from an accident in which an 18 inch long shard or stake of wood was ejected from a rip saw and pierced the arm of a worker who was working nearby.

The employer argued that the machine had proper safety mechanisms to avoid such incidents, and therefore that the accident was not foreseeable.

The court found that the employer had failed to even obtain the applicable operator’s manual for the machine. There was no evidence that any worker or supervisor had read the manual. The manual noted that there was risk to the operator and “third persons” from “kicked back material”. By not reading the manual, the supervisor had not acquainted himself with the inherent risks associated with the rip saw, nor had he taken the necessary steps to address those risks. The employer could have, for instance, erected a barrier to protect workers from kicked back materials. Further, the employer did not have a program in place to check for broken “anti kickback teeth” or fingers, one of which was found to be broken.

The court stated:

“[T]aking all reasonable care also requires more than just arguing that the best equipment had been purchased and installed, to show what steps had been taken to prevent the event that had occurred . . . Moreover, the defendants would have had to respectively take proper care to acquire knowledge about the measures and requirements to properly operate the rip saw machines safely, to ensure that the machine’s protective elements were functioning properly, and to prevent any of the inherent risks outlined by the manufacturer in the 2007 Operating Manual from occurring, including the risks from splinters and material being kicked back by the machine’s saw blades. Being passive and simply relying on the machine’s internal shields and guards would not demonstrate that either defendant had taken all reasonable steps respectively to ensure the safety of the workers at the Alpa Lumber plant working in the vicinity of Rip Saw #1 while it was operating.”

This case demonstrates that employers cannot rely only on safety features built into machines; instead, employers must demonstrate that employees are familiar with potential hazards of machines and take steps to avoid those hazards.

Ontario (Ministry of Labour) v. Alpa Lumber Mills, 2016 ONCJ 675 (CanLII)

Having failed to obtain and review proper operating manual for machine, employer and supervisor convicted under OHSA

Arbitrator finds employer violated OHSA workplace-violence obligations

A labour arbitrator has found that a mental health organization violated the Occupational Health and Safety Act when it failed to take certain workplace-violence precautions.

The organization provided services to persons with mental health issues, including securing housing.

A Case Manager with the organization became aware that a client had sent another client a text suggesting that he wanted to sexually assault the employee.  The organization decided to bar the client from contact with the employee and from attending drop-in sessions. Nevertheless the client attended drop-in sessions on at least two subsequent occasions.

The arbitrator found that the organization did not have any means of preventing a client from texting another client an offensive text that threatened an employee.  However, the organization, having barred the client, failed to ensure that the client “heeded the injunction” and stayed away. That was a violation of the OHSA.  There was no evidence that the employee encountered the client at any of the drop-ins after he was barred, so there was no basis for an award of damages.

In a second incident, the employee reported that she felt threatened by a client.  The employee’s notes included references to the client “‘leaning over writer’, ‘shouting about aliens’, invading her personal space ‘as he kept tapping her on the knee’, becoming ‘extremely agitated’, leaning over the Grievor, speaking about eating humans and making ‘a sudden strangling gesture towards [the Grievor]’, referring to having been on probation in connection with charges of sexual assault of a woman, ‘leaning over [the Grievor] in an aggressive manner and she had to push him back away from her’, being told by the Grievor that his behaviour was threatening and that he does not respect her personal space, ‘advancing towards [the Grievor] on a couple of occasions screaming about aliens, homosexuals and radiation, invading the Grievor’s personal space, and, finally, charging the Grievor, pushing her forcefully in the chest, and causing her to lose her balance.’

The organization directed the employee to stay out of that client’s residence based on her perception of a threat, but she ignored that direction.  The arbitrator decided that the organization had violated the OHSA by failing to ensure that the employee complied with the employer’s direction. Again, no damages were warranted, but the arbitrator granted a “declaration” that the employer had breached the OHSA.

Ontario Public Service Employees Union, Local 548 v Cota Health, 2016 CanLII 81970 (ON LA)

Arbitrator finds employer violated OHSA workplace-violence obligations

Employee who forged 16 sick notes, then tried to blame her manager, was fired for cause

A Canada Revenue Agency employee who forged signatures on 16 sick notes was fired for cause, a federal adjudicator has decided.

The employee had a problem with absenteeism and started missing work without calling in. The employer reminded her of the sick leave policy including the requirement that she provide medical notes.  The letter said that failure to comply could lead to discipline or termination.

Over the next ten months, the employee forged signatures on 16 medical notes.  When confronted, the employee said that her illness was alcoholism and she had been too drunk to go to a doctor when she called in sick.  The employee was unapologetic and attempted to deflect blame onto her manager for requiring her to produce medical notes, and said  “You would not want me to drive drunk”. She said she had numerous personal issues including her brother’s death and her mother’s declining health.

The employer said that the falsified sick notes had resulted in the employee getting 216 hours of paid leave and 218.5 hours of unpaid leave. The paid leave was valued at approximately $9,300.00.

The adjudicator stated that there was no expert evidence that alcohol dependency caused the employee to forge the notes or removed her inhibitions to do so. As such, the employee had not shown that her dismissal was discriminatory because of disability.

The adjudicator stated that “There is no question that her actions amounted not only to misconduct but also to serious misconduct.”  He held that the employee had been dishonest on a number of occasions.  Further, she had tried to blame others.  Although she had 25 years of service, she had not pursued rehabilitation in any meaningful way.  The adjudicator therefore held that the employer had just cause to dismiss her.

McNulty v. Canada Revenue Agency, 2016 PSLREB 105 (CanLII)


Employee who forged 16 sick notes, then tried to blame her manager, was fired for cause

Regulation still required compliance with older ANSI standard, not updated version: Tribunal

Where the government had not updated a regulation to require compliance with a newer version of an ANSI (American National Standards Institute) standard, the law still required compliance with the old version, a federal tribunal has decided.

Section 2.9 of the Canada Occupational Health and Safety Regulations required that “A fixed ladder installed after the day of the coming into force of this section shall be designed, constructed and installed in accordance with the requirements of ANSI Standard A14.3-1984 entitled American National Standard for Ladders — Fixed — Safety Requirements, as amended from time to time, other than section 7 of that Standard.”

That 1984 ANSI standard was replaced by new versions in 1992 and 2008.

The Occupational Health and Safety Tribunal Canada decided that the 1984 ANSI continued to govern – not the 1992 and 2008 versions – because the 1984 standard was the one referred to in the regulation.  The 1992 and 2008 versions were “replacement” versions, not “amended” versions of the 1984 standard.  The 1984 ANSI standard did not require that “swing gates” be installed at the openings of rest platforms on fixed ladders, and therefore the Direction issued by a federal safety officer was rescinded.

Richardson Pioneer Limited, 2016 OHSTC 16 (CanLII)


Regulation still required compliance with older ANSI standard, not updated version: Tribunal

“You’re kind of close to those wires”: excavator operator guilty of OHSA charges after hitting power line

An excavator operator has been found guilty of two Occupational Health and Safety Act charges after hitting a power line.

The operator, who was working on a road construction project, was planning to load the excavator onto the float bed of a truck to take it to another worksite.  The truck driver parked under a power line. The operator commented that “You’re kind of close to those wires”, to which the truck driver said, “it’s all right”.

The operator then moved the excavator and hit the power line, which carried 69,000 volts.  The truck driver received an electric shock and fell.  The operator was able to revive the truck driver, who suffered injuries including burns and was off work for a year.

The judge found that the excavator operator was “clearly apprised of the dangerous situation”, as shown by his comment that the truck was “kind of close” to the power line and his statement to the government safety inspector that, “I seen the wires, I knew the wires were there.”  He should have, at the least, refused to load the excavator until the truck was completely away from the power line.  The judge said that “this was clearly an avoidable workplace injury”.

The judge found the operator guilty of two OHSA charges: failing to take every reasonable precaution to protect the safety of himself and others, and carrying out work within 6 metres of a power line without knowing the voltage of the power line.

R. v. Jardine, 2016 NSPC 22 (CanLII)

“You’re kind of close to those wires”: excavator operator guilty of OHSA charges after hitting power line

Work-refusing employee did not have right to delay investigation for 2 hours until her preferred union representative could attend

A correctional officer did not have the right to delay her employer’s investigation of her work refusal for two hours while her preferred union representative attended to “personal” matters.

The correctional officer’s union was nearing a strike deadline. The employee and five other correctional officers attended at work and engaged in a work refusal when they learned that 50 of their colleagues had called in sick and that the institution was being run by management on that day.

The employer advised that it wished to engage in a “Stage 1” work refusal investigation. The employee asked for a certain union representative to assist her, and asked to wait two hours while that union representative, who was not at the workplace at that time, attended to personal matters. The employer advised the six correctional officers that if they did not participate in the investigation, they would be deemed to have abandoned their work refusal, which the employee took as a “threat”.

The other five officers agreed to have another union representative assist them, but the employee did not. She then filed a reprisal complaint with the Ontario Labour Relations Board alleging that the employer’s “threat” was a reprisal that violated the Occupational Health and Safety Act.

The OLRB disagreed. The OLRB noted that the OHSA required the employer to investigate the work refusal “forthwith” after the work-refusing employee has “promptly” reported it.  The OHSA also provided that any representative of a work-refusing employee “shall attend without delay”. As such, the employee had no right to representation, in the work refusal investigation, by a union representative who was not in the workplace and not available for two hours.  As a result, the employer’s “threat” did not violate the OHSA as the employer was not threatening the officer for engaging in a work refusal per se, but rather for holding up an investigation which the OHSA requires to be conducted “forthwith”.  The employer was entitled to tell her that her refusal to participate in the work refusal process in a timely manner could be taken as an abandonment of the work refusal which could lead to disciplinary consequences if the employee continued to refuse to work.

Lynda Kathleen Gough v Elgin-Middlesex Detention Centre, 2016 CanLII 74661 (ON LRB)

Work-refusing employee did not have right to delay investigation for 2 hours until her preferred union representative could attend

City bylaw prohibiting hookah smoking in licensed businesses for health and safety reasons is valid: Court

The City of Toronto Council had the legal authority to make a by-law that prohibited hookah smoking in licensed establishments, an Ontario judge has decided, given the city’s valid health and safety concerns.

The City of Toronto Act gave City Council the power to make bylaws respecting the “Health, safety and well-being of persons”.

The city presented evidence that hookah smoking was hazardous to health and that hookah smoke included some of the same cancer-causing chemicals associated with tobacco.

A group of owners of hookah lounges attacked the bylaw. One of their arguments was that the bylaw violated the Occupational Health and Safety Act because it would cost workers their jobs whereas the purpose of the OHSA, according to the owners of the hookah lounges, was to “protect jobs”.  The court rejected that argument, deciding that the reason for the bylaw – health and safety –  was consistent with the purpose of the OHSA which was safety of workers.

The court stated:

“It is difficult to see how the by-law operationally conflicts with the OHSA.  The OHSA is designed to protect workers.  It regulates workplaces in the interests of worker safety.  It is difficult to see how compliance with the by-law makes it impossible to comply with the OHSA.  Moreover, it is very clear that it is public policy in Ontario to discourage smoking and protect people (including workers) from the effects of tobacco smoke: Smoke Free Ontario Act.  While that Act only applies to tobacco, the objective (healthier citizens) is broader.  A by-law that protects workers does not frustrate the objectives of the OHSA.”

The judge concluded by saying that he had a great deal of sympathy for the owners of the hookah lounges.  “They run modest businesses that are otherwise lawful and compliant with pertinent regulations and by-laws.  They make an important contribution to the diversity that makes life in our city so culturally rich and vibrant.  It is unfortunate for them that Council chose to prohibit rather than regulate hookah use in establishments licenced by the City to carry on business.  That was a policy decision by elected officials.  It is my duty to determine whether the by-law is legally valid, not whether it is good policy or bad policy.”

2326169 Ontario Inc. v The City of Toronto, 2016 ONSC 6221 (CanLII)

City bylaw prohibiting hookah smoking in licensed businesses for health and safety reasons is valid: Court

Three days in jail for owner of roofing business after trying to deceive MOL inspector

The owner of a roofing business has landed in jail for three days after trying to trick a Ministry of Labour inspector following a workplace accident.

Three workers were working on a residential roofing project but the owner did not make fall protection equipment available to them.

According to the MOL press release, after one worker fell 18 feet and injured himself, the owner directed another worker to go up on the roof and set up lifelines and fall protection equipment in order to deceive the MOL inspector.

The owner pleaded guilty to two OHSA offences: attempting to obstruct and interfere with an inspector, and failing to ensure that a worker was protected by a method of fall protection.

The court jailed the owner for three days on the obstruction/interference charge and imposed a $5,000.00 fine on the other charge.

Although for many years there were very few jail terms imposed by courts for OHSA violations, the courts are increasingly willing to impose jail terms for serious violations including attempting to deceive MOL inspectors.

The Ministry of Labour’s press release on this case may be accessed here.

Three days in jail for owner of roofing business after trying to deceive MOL inspector

Employer’s Safety Concerns Were Not Sufficient to Avoid its Obligations Under its Collective Agreement

An Employer was required to revert to a previous shift schedule in accordance with its obligations under the collective agreement, notwithstanding its claim that the previous shift schedule was less safe.

Initially, the majority of the employees at the Employer’s mine worked a rotating 2X2 shift schedule whereby employees each worked 12 hour shifts. They worked 2 day shifts, had a 24 hour break, followed by 2 night shifts and then 4 days off.

In 2014, after more than a year of negotiations, the Employer and the Union entered into a Memorandum of Agreement which included 2 Letters of Understanding setting out a new shift schedule. The new shift schedule was a 4X4 rotating shift. Employees would continue working 12 hour shifts but would do so in 4 day shifts, followed by 4 days off, then work 4 night shifts, followed by 4 days off.  The agreement was for a 9 month trial period after which employees would vote on whether they wanted to continue permanently with the 4X4 schedule, or return to the previous 2X2 schedule.

At the end of the 9 month trial period, the employees voted against a permanent change to the 4X4 schedule. Pursuant to the agreement, the Employer was required to return to the previous schedule within 60 days. The Employer refused, citing safety issues. During the trial period, it had monitored safety and performance indicators which it believed demonstrated that the 4X4 configuration was safer and more productive than the 2X2 arrangement. For instance, the Employer claimed that the trial period had yielded the lowest number of total incidents, with a 23% overall reduction, in spite of the Employer encouraging greater incident reporting. Although this was an unintended consequence, the Employer concluded that it could not, in good conscience, return to a shift arrangement it considered to be less safe. The parties discussed numerous options but were unable to come to an agreement. Both the Union and the Employer filed grievances.

The arbitrator found that the Employer was required to return to the 2X2 schedule in accordance with the agreement and in light of the results of the employees’ vote. The arbitrator then considered whether the Employer’s safety concerns were sufficient to justify its refusal to return to the 2X2 shift as required. The arbitrator accepted that the safety improvements were real but was not persuaded that a return to the 2X2 shift could be categorized as unsafe or in violation of the Employer’s obligations under the occupational health and safety legislation. The arbitrator found it difficult to conclude the 2X2 shift was unsafe given that the Employer had operated this shift for decades and agreed with the Union’s point that improved safety was not a “trump card that can simply be pulled out to defeat collectively bargained consequences.” Overall, the evidence fell short of establishing that a return to the 2X2 shift would be unsafe. The arbitrator appeared to acknowledge that the Employer may have an overriding right to impose a new schedule based on safety issues, despite its collective agreement commitments; however, it compared that right to the employees’ right to refuse unsafe work as a right that had to be exercised seriously and sparingly. Having the right did not mean that employees could refuse work because there may be a somewhat safer way of doing the work.

The arbitrator ultimately upheld the Union’s grievance and directed the Employer to return to the previous 2X2 schedule as soon as possible. However, he urged the parties to work together to develop alternative schedules if the Employer considered it necessary. He also urged the Union and its members to give renewed attention to the safety considerations involved and not to let other issues direct attention away from proposals that offered a demonstrable improvement in safety.

SunHills Mining LP v. United Steelworkers Local 1595, 2016 CanLII 71922 (Alta. GAA)


Employer’s Safety Concerns Were Not Sufficient to Avoid its Obligations Under its Collective Agreement

After being told that she should just “quit” if she felt unsafe, dismissed employee awarded $15,000 in damages

A charity has been ordered to pay a dismissed employee $15,000 in damages for dismissing her shortly after she had raised safety issues, in violation of the Occupational Health and Safety Act.

The charity ran retail stores that helped fund its operations. The employee was supervisor of the book room at one of its stores.

The Ontario Labour Relations Board stated that it was clear that on the day the employee was dismissed, that the employer was aware of several attempts by the employee to exercise her rights under the OHSA.  On one occasion, the executive director told her that if she felt unsafe at work, she should just “quit”.

The executive director admitted that it was “common knowledge” that the employee was “involved in OHSA”; that the employee had spoken with a Ministry of Labour inspector during a recent visit to the workplace; that the employee had been instrumental in having a worker member elected to the joint health and safety committee, and later had herself been elected; and that the employee had refused to perform unsafe work (moving a large quantity of books) approximately one month before her dismissal.  The OLRB held that “any one” of these admissions would have called in doubt the reason given by the employer for dismissing her – a restructuring of the workplace.   This was especially true given that the restructuring of its workplace would involve an expansion which would require the hiring of additional employees.

As such, the OLRB decided that the employer had failed to discharge its onus under the OHSA to establish that its dismissal of the employee was not a reprisal for asserting her rights under the OHSA.

The OLRB awarded the employee $15,062.00 including $8,780.09 for loss of her job and $3,500.00 for emotional pain and suffering (including for demoting her, shortly before the termination, in front of her coworkers).

Leah Podobnik v Society of St. Vincent de Paul Stores (Ottawa) Incorporated, 2016 CanLII 65109 (ON LRB)

After being told that she should just “quit” if she felt unsafe, dismissed employee awarded $15,000 in damages

Appeal of MOL compliance order adjourned while related OHSA prosecution ongoing, despite City’s objection

The Ontario Labour Relations Board has adjourned an appeal of a Ministry of Labour inspector’s compliance order against the City of Sudbury while a related prosecution under the Occupational Health and Safety Act is ongoing, despite the City’s objection.

The MOL laid charges under the OHSA against the City and Interpaving Limited in the Ontario Court of Justice.  Evidently a Ministry of Labour inspector also issued a compliance order against the City. The City appealed the order to the OLRB and the MOL asked the OLRB to adjourn that appeal while the prosecutions (charges) were ongoing in court.  Interpaving agreed that the appeal should be adjourned but the City disagreed.

The OLRB decided that the appeal of the inspector’s compliance order should be adjourned. The issues in that appeal overlapped with the issues in the prosecution. Continuing with the OLRB appeal would likely result in witnesses being required to testify and be cross-examined, which could cause prejudice to the MOL, the City and Interpaving in the prosecutions. Allowing the appeal to proceed first could interfere with the prosecution or result in inconsistent judgments on the same issues. Also, there was no ongoing issue with respect to the appeal because the MOL inspector’s compliance order that was under appeal had been suspended and the work completed.

The OLRB therefore adjourned the appeal for one year, subject to possible further extensions if the OHSA prosecution in the Ontario Court of Justice was not completed within that year.

This decision is consistent with the OLRB’s practice of adjourning appeals of MOL inspectors’ compliance orders while a prosecution, arising out of the same incident or accident, is ongoing in court.

City of Greater Sudbury v A Director under the Occupational Health and Safety Act, 2016 CanLII 67485 (ON LRB)

Appeal of MOL compliance order adjourned while related OHSA prosecution ongoing, despite City’s objection

Federal employee has effective veto over appointment of “impartial” workplace violence investigator, as long as veto not exercised in “abusive” manner: Tribunal

A federal employee’s objection to the appointment of a workplace violence investigator was valid, the Occupational Health and Safety Tribunal Canada has decided, because the investigator was not “seen by” the employee as impartial.  Although this decision legally affects only federally-regulated employers (those subject to the Canada Labour Code), it is likely of interest to provincially-regulated Canadian employers too.

The employee, Mr. Chartrand, claimed that he had been abused and harassed in the workplace.  Another employee claimed that Chartrand had himself engaged in workplace violence and harassment.

The investigator in Chartrand’s complaint decided that the complaint was “inadmissible” and that it was impossible for him to confirm whether the alleged actions had taken place.  Chartrand asserted that the investigator was impartial because he did not meet with the witnesses that Chartrand had referred to him.  A different investigator in the second complaint concluded that the complaint against Chartrand was justified.

The Canada Occupational Health and Safety Regulations require, in section 20.9, that if the parties are unable to resolve a workplace violence complaint, the employer must appoint a “competent person” to investigate who is “impartial and is seen by the parties to be impartial“.

The Tribunal stated:

[55]           The legislator clearly preferred a consensual approach to the issue of impartiality. By including the words and is seen by the parties to be impartial after the word impartial, the legislator clearly requires the parties to agree on whether the person proposed by the employer is impartial . . . If an agreement is not reached, the proposed person simply cannot be appointed.

[56]           From this it can be inferred that the legislator considered it vital that the parties agree on the impartiality of the person designated to conduct the investigation whose objectives are described in subsection 20.9(3) and et seq. of the Regulations. There is no doubt that the objective sought by the legislator is to ensure the credibility of the recommendations that this person must provide at the end of the investigation and to promote their acceptance by all of the parties involved.

The Tribunal decided that it is up to the employer to appoint a “competent person” to investigate but that person’s impartiality must be genuine and seen as such by the parties.  The employee’s refusal to agree that an investigator was impartial need not be “substantiated and justified” but it must not be abusive.

The Tribunal noted that an “abusive or discriminatory” approach by an employee in the selection of an “impartial” investigator could lead to discipline against the employee or be interpreted as a waiver of the employee’s rights to have a competent person appointed under the Canada Labour Code to conduct an investigation into workplace harassment or violence.

The Tribunal decided that Chartrand had not abused his rights in this case.  The Tribunal noted that Chartrand was at the centre of a number of disputes with his employer, and this could explain his distrust of the employer’s representatives and his belief that the investigation would be harmful to him from the outset.

Maritime Employers Association v. Longshoremen’s Union, CUPE, Local 375, 2016 OHSTC 14 (CanLII)

Federal employee has effective veto over appointment of “impartial” workplace violence investigator, as long as veto not exercised in “abusive” manner: Tribunal

Alberta’s Workers’ Compensation Appeals Commission frees purchaser of the poor WCB record of the company it acquired

In this case, a public company (Newco) had purchased the assets and undertaking of a business (Oldco) as part of a larger national transaction.  Newco then carried on the business under a new name and a new corporate structure.  The WCB had conducted a risk assessment and decided to combine Newco and Oldco’s experience records.  Oldco had a poorer than average experience record compared to its risk class; therefore, the result of the combination was that Newco was forced to assume Oldco’s poor risk assessment.  This resulted in higher WCB premium costs to Newco.

Newco requested a review of the WCB’s decision from the Dispute Resolution and Decision Review Body (DRDRB). The DRDRB upheld the decision and Newco then appealed that decision to the Appeals Commission for the Alberta Workers’ Compensation.

The Appeals Commission reviewed the WCB’s policies and governing legislation.  The WCB’s policy provides that when the ownership of a business changes, the WCB will typically review the situation to determine if a combination of experience records is warranted. Thus, Newco’s acquisition of Oldco triggered a review to assess whether there had been a change in the risk.

The Appeals Commission reviewed the criteria set out in the WCB policy that should be considered by the WCB when considering its risk assessment:  ownership, affiliation and control, business continuity, continuity of management personnel, change in financial and operational control, continuity of health and safety programs and disability management, intercompany transactions, and the transfer of workers between businesses.  The WCB policy does not weigh these criteria and thus the process is discretionary.

The Appeals Commission ultimately concluded that the changes implemented by Newco had resulted in a substantial improvement in the risk profile of Oldco. Therefore, it was not reasonable for the WCB to combine Oldco’s unfavourable experience record with Newco’s.  The Appeals Commission relied on the following factors:

  • Oldco was an “orphan division” that did not have a corporate structure focused on occupational health and safety matters;
  • There had been no overt efforts by Oldco’s directors or executives to manage or improve its occupational health and safety aspects;
  • Newco was a division of an international organization that intended to operate the business in accordance with the high standards expected of an international organization;
  • Newco had an explicit plan to revise the business’ safety culture and focus on preventative safety;
  • Newco revised the organizational structure of Oldco, with executives in place who were specifically tasked with the responsibility for workplace safety;
  • Newco rebranded Oldco, putting its own reputation in jeopardy if it failed to properly Oldco’s short comings;
  • Newco made several capital investments to enhance Oldco’s safety;
  • Newco brought in an appropriate corporate structure to support its safety initiatives; and
  • Newco introduced numerous safety protocols that were wholly absent in Oldco.

The Appeals Commission found that these factors suggested a significant improvement in Oldco’s risk profile and overwhelmed the other policy criteria in this case.  The Appeals Commission placed significant weight on the importance of having an effective corporate management structure in place to deal with occupational health and safety matters.  It described Oldco as “drifting without corporate oversight, direction or investment” and without an established safety program. Under Newco, the business had a sophisticated safety program in place and the appropriate structure to ensure that the safety program were adhered to.  Therefore, it was not appropriate to combine the experience records.

This decision highlights yet another consideration for potential purchasers of a business and notes the risks associated with taking over a business that has a poor WCB record.  It also highlights some of the steps that a purchaser can take to minimize the risk that it ends up being saddled with the vendor business’ WCB failings.

Decision No. 2016-0534, 2016 CanLII 66308 (AB WCAC) http://www.canlii.org/en/ab/abwcac/doc/2016/2016canlii66308/2016canlii66308.pdf

Alberta’s Workers’ Compensation Appeals Commission frees purchaser of the poor WCB record of the company it acquired

OLRB dismisses union’s “fishing expedition” in safety case: documents requested from MOL and employer were not arguably relevant

The Ministry of Labour and the employer were not required to hand over certain documents requested by the union in a safety dispute, the Ontario Labour Relations Board has decided.

The issue in dispute was whether the employer was required to de-energize cables prior to entry into “Cable Chamber 428″. A Ministry of Labour inspector decided ” no” and the union appealed to the OLRB. A worker had engaged in a work refusal.

The union asked the OLRB to order the MOL and employer to provide documents in numerous categories identified by the union, including any injury or near-miss or accident report involving energized cables from 1999 to present, and any reports of “cable chamber explosions”.

The OLRB decided that the documents requested were not arguably relevant to the appeal in issue, which dealt only with Cable Chamber 428.  The union’s request for documents was “overly broad and lacks the precision needed to make any production order.   It is also a fishing expedition that could unnecessarily protract this proceeding”.  Further, the employer had already produced numerous documents including those it intended to rely upon at the hearing.

Canadian Union of Public Employees, Local 1 v Toronto Hydro-Electric System Limited, 2016 CanLII 65523 (ON LRB)

OLRB dismisses union’s “fishing expedition” in safety case: documents requested from MOL and employer were not arguably relevant

After accepting guilty plea, prosecutor cannot reargue trial court’s decision to exclude evidence of worker’s injury when setting fine

The Ministry of Labour cannot reopen a Justice of the Peace’s decision to exclude evidence that a worker was injured, where the defendant company later pleaded guilty to Occupational Health and Safety Act charges and the prosecutor accepted the plea.

At trial, the Justice of the Peace decided to exclude the testimony of the worker who was apparently injured in a workplace accident.  The company then decided to plead guilty to one charge and the prosecutor withdrew the other charge against the company and a separate charge against a contractor to the company.

The parties then argued about the fine, and the Justice of the Peace again excluded the evidence of the apparently injured worker when setting the fine. Presumably the court imposed a fine that was lower due to the lack of any evidence about worker injuries.

The Ministry of Labour thought the fine was too low.  It appealed the decision on the fine, and sought on the appeal to reargue the Justice of the Peace’s decision to exclude the worker’s testimony in considering how much the fine should be.

The appeal judge decided that, having “actively participated” in the guilty plea which ended the trial, the MOL was bound by the Justice of the Peace’s decision to exclude the worker’s evidence about his injury and could not reopen that issue on appeal.  The appeal judge recognized that the result of his ruling on that issue may well end the appeal, because evidence about the worker’s injury would not be considered in arguments about the amount of the fine.

Ontario (Ministry of Labour) v. Ontario Power Generation, 2016 ONCJ 299 (CanLII)

After accepting guilty plea, prosecutor cannot reargue trial court’s decision to exclude evidence of worker’s injury when setting fine