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GHS (WHMIS 2015) online courses now available

The Canadian Centre for Occupational Health and Safety has released two online courses on WHMIS 2015, which implements the Globally Harmonized System of Classification and Labelling of Chemicals (GHS).

One course is for managers and supervisors, and is intended to help them understand their duties under the WHMIS 2015 (GHS) legislation.  The other course explains the purpose of safety data sheets and the information contained in them.

The law provides for a transition period to GHS.  By December 1, 2018, the transition to GHS must be complete for all parties, including employers.  By that date, employers should have no hazardous products with old WHMIS labels and safety data sheets.

More information on the training courses may be found here.

GHS (WHMIS 2015) online courses now available

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at the openings of rest platforms on fixed ladders, and therefore the Direction issued by a federal safety officer was rescinded.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

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

Men without hardhats: where freedom of religion loses out to workplace safety

Freedom of religion and the duty to accommodate within the workplace context is a highly important issue in Québec given the discrimination provisions of the Canadian Charter of Rights and Freedoms as well as the Québec Charter of Human Rights and Freedoms. Employers and employees must work together to attempt to reconcile the right to freedom of religion of employees with the legal obligations imposed on employers under occupational health and safety laws. Quebec courts have been frequently called to rule on this particular subject over the years.

Most recently, in the case of Singh et al. v. Montréal Gateways Terminals et al., the Superior Court of Québec was called to rule on the issue as to whether individuals of the Sikh religion could be exempted from a work policy implemented by the Montréal Gateways Terminals (“MGT”), Empire Stevedoring Co. Ltd. and Termont Terminals Inc. (collectively the “Defendant Terminals”). This policy required all workers to wear a hardhat when circulating outside on the premises of the terminals. The Plaintiffs, truck drivers whose work included transporting containers, claimed that their religious belief prohibited them from wearing such hardhats. Accordingly, they maintained that this policy was discriminatory and violated their right to freedom of religion. Upon adopting the policy, MGT tried to accommodate the Plaintiffs by modifying its container loading procedures which enabled them to stay in their vehicles and, hence, avoid wearing hardhats. However, these measures were rejected by the Plaintiffs as they claimed that they involved significant disadvantages.

This issue was decided upon on September 21st 2016 by Mr. Justice Prévost, J.C.S., who ruled that although MGT’s policy was prima facie discriminatory and violated the right to freedom of religion as regards to the Plaintiffs, it was nevertheless justified given the imperative objectives of such policy.

In reaching his decision, Mr. Justice Prévost, J.C.S., began his analysis by examining the principles with respect to discrimination enshrined in the Canadian Charter of Rights and Freedoms and the Québec Charter of Human Rights and Freedoms. To that effect, this decision is of significant importance as it is a rare case of transposition of the protections granted under the Québec Charter of Human Rights and Freedoms to a federally-regulated workplace. He established that the policy was in fact discriminatory since the Plaintiffs could not meet the requirement of wearing a hardhat without violating their religious beliefs and, thus, could not work at the terminals operated by MGT. He also confirmed that the policy violated the Plaintiffs’ right to freedom of religion as their belief was sincerely held and the challenged policy interfered with the Plaintiffs’ ability to act in accordance with their beliefs in a manner that was more than trivial or insubstantial.

Nonetheless, Mr. Justice Prévost, J.C.S., held that the policy implemented by the Defendant Terminals was justified as it was adopted in order to ensure the safety of workers circulating or working in the terminals operated by the Defendant Terminals. There was in fact a substantial risk of head injuries for truck drivers when they were required to circulate outside their vehicle on the premises of the terminals. In rendering his decision, Mr. Justice Prévost, J.C.S., also underlined the importance of health and safety at work within the Québec society.

Empire Stevedoring Co. Ltd., Termont Terminals Inc. and the Montreal Port Authority were represented by Vikki-Ann Flansberry from Dentons Montreal.

Singh et al. v. Montréal Gateways Terminals et al. 2016 QCCS 4521

Click on the link to have access to the decision (available in French only)

Men without hardhats: where freedom of religion loses out to workplace safety

High school machine shop teacher loses work refusal case

A machine shop teacher’s work refusal was not justified, an appeals tribunal has decided, given that the teacher had the ability to manage the class environment to ensure safety.

The teacher refused to teach the class if there were more than 16 students present, stating that a larger class size would put his safety at risk.

The teacher argued that adolescents were prone to act in an unpredictable manner when working with machinery, risking creating “projectiles and other hazardous situations”.

In dismissing the teacher’s appeal from the decision of a health and safety officer, the tribunal noted that the collective agreement set the maximum class size at 29 and that the New Brunswick Department of Education recommended a class size of 18 to 22. As such, the teacher’s personal limit of 16 was not justified.

Most importantly, the teacher had the ability to provide less hands-on teaching and more class time, which would help manage safety in the classroom.

The tribunal stated:

“While it is obvious that the teaching experience will suffer, it was apparent from the appellant’s testimony that less hands-on experience and more classroom time will ensure the safety of the students. While students may not like less hands-on training, the issue before me concerns whether the January 8, 2016, decision should be overturned.”

As such, the teacher’s appeal was dismissed.  His work refusal was not justified under the New Brunswick Occupational Health and Safety Act.

20168017 (Re), 2016 CanLII 57012 (NB WCAT)

High school machine shop teacher loses work refusal case

Federal employers not required to inspect workplaces that they don’t control: court

The Federal Court has decided that federally-regulated employers are not required to conduct inspections of places not under their control where their employees work.   The decision will be a relief to federal employers whose employees regularly work away from the employer’s office.

The court rejected letter carriers’ claim that Canada Post was required to ensure that inspections were conducted of public areas including the letter carriers’ routes.

The provision in issue was section section 125(1)(z.12) of the Canada Labour Code which provides:

125. (1) Without restricting the generality of section 124, every employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activity,

. . .

(z.12) ensure that the work place committee or the health and safety representative inspects each month all or part of the work place, so that every part of the work place is inspected at least once each year;

The Court decided that that provision required inspections of only workplaces actually controlled by the employer – not workplaces, such as letter routes, that are not under the employer’s control.  The Court upheld a federal Appeals Officer’s decision stating that employers cannot be required to inspect workplaces over which they have no control and thus no opportunity to fix hazards identified in the inspection.

The Court concluded:

“The Appeals Officer recognized that Parliament intended to give the broadest possible protection to employees including to those performing work in a place which the employer may not control. In my view the Appeals Officer’s interpretation of subsection 125(1) and paragraph 125(1)(z.12) demonstrates sensitivity to preserving the broad nature of the employer’s obligations to ensure the health and safety of its employees without placing obligations upon the employer that the latter would be unable to fulfill.”

Canadian Union of Postal Workers v. Canada Post Corporation, 2016 FC 252 (CanLII)

Federal employers not required to inspect workplaces that they don’t control: court

Watch Out: Ontario Ministry of Labour Inspection Blitzes/Initiatives Are Coming

The Ontario Ministry of Labour recently announced its 2016 and 2017 enforcement blitz and initiative schedule. In an effort to emphasize the importance of protecting workers’ rights and ensuring employer compliance with both the Occupational Health and Safety Act and the Employment Standards Act, 2000, the Ministry has prepared a coordinated inspection blitz schedule under the Employment Standards Program and the Occupational Health and Safety Program. The blitzes are set to continue until March 2017.

The Employment Standards inspection blitzes will focus on high-risk sectors where there is a history of ESA violations and/or where young workers, vulnerable workers and/or an increasing number of Ontarians are employed. This will include the following sectors: Construction, Food Services, Retail Trade, Professional Services, Services to Buildings and Dwellings, Other Amusement and Recreation Industries, and Personal Care Services.

The OHSA inspection blitzes will focus on sector-specific hazards with the aim of raising awareness and increasing compliance with the OHSA. The provincial OHSA Blitzes will target the Construction, Industrial and Mining Sectors with a focus on: Falls, New and Young Workers, Mobile Cranes and Material Hoisting, and Safe Material Tramming Underground.

In addition to province-wide blitzes, the Ministry will conduct local blitzes in predetermined regions throughout the province targeting specific sectors. For the ESA blitzes this will include the Child Day-Care Services, Manufacturing, Fitness Centres, Tow Truck Companies, and Small Manufacturing sectors; for the OHSA blitzes this will include the Industrial and Construction sectors.

The Ministry will report the results of its inspections shortly after they are completed and will track its findings to ensure improvements in compliance and fewer workplace injuries. The Ministry reports that since 2005, it has recovered over $144 million in wages and other money owed to employees through its inspections, claims and collections and, since 2008, has issued more than one million compliance orders for safety issues across all sectors.

Even if you are not in a targeted sector, be aware that in addition to the 2016/2017 inspection blitzes, the Ministry’s officers will continue to conduct their ongoing enforcement efforts, so they may still show up at your door. As such, all employers, and particularly those in sectors targeted by the 2016/2017 blitzes, should take steps to ensure that their workplaces are compliant with both the ESA and OHSA. The Ministry of Labour’s Inspection Blitzes and Initiatives Announcement and 2016-2017 Schedules can be found here.

Watch Out: Ontario Ministry of Labour Inspection Blitzes/Initiatives Are Coming

U.S. OSHA’s “severe injury” statistics broken out by industry

The U.S. Occupational Safety and Health Administration has produced a “year one” impact-evaluation report on its Severe Injury Reporting Program.

Effective January 1, 2015, U.S. employers have been required to report to OSHA within 24 hours of any work-related amputation, in-patient hospitalization or loss of eye.

OSHA reports that it received 7,636 “hospitalization reports” in 2015.  The manufacturing industry was responsible for 26% of the hospitalization reports, while 19% were from construction, 11% from transportation and warehousing, 8% from retail trade, 6% from “administrative and support and waste management and remediation services”, 6% from health care and social assistance, 5% from wholesale trade, 3% from oil and gas extraction and 16% from other industries.

Fully 57% of “amputation reports” came from manufacturing, with 10% from construction.

OSHA’s report can be accessed here.

U.S. OSHA’s “severe injury” statistics broken out by industry

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Death of visitor leads to employer’s conviction, $100,000 fine under OHSA

This case is a reminder that injuries to non-employees can lead to Occupational Health and Safety Act convictions and fines against employers.

A visitor to a self-storage facility in North Bay fell through an open hole in the floor of a storage unit, after he came to the facility to examine a truck that was being stored there.  He fell about 6 feet to the concrete floor below and died.

The company that operated the self-storage facility pleaded guilty to the OHSA offence of failing as an employer to take every precaution reasonable in the circumstances for the protection of a worker (failing to ensure that an open hole in the floor of a storage unit was protected by a guardrail or floor covering).

The Ministry of Labour notes, in its Court Bulletin, that the OHSA applies “because there were workers at the site who were exposed to the same hazard and the company is an ’employer'” under the OHSA.  That is, even where the injured employee is not a worker / employee, if the injury resulted from a hazard to which workers were also exposed, the OHSA applies and the employer may be charged and fined.

Death of visitor leads to employer’s conviction, $100,000 fine under OHSA

July 1, 2016: All Ontario employers must comply with new noise regulation

As of July 1, 2016, all Ontario employers will be required to comply with a new workplace noise Regulation under the Occupational Health and Safety Act.

The new Regulation (381/15) replaces noise protection requirements currently in the regulations for Industrial Establishments, Mines and Mining Plants, and Oil and Gas-Offshore.  Those regulations apply to many – but not all – Ontario employers.

The noise obligations will be new for employers with the following types of workplaces:

  • construction projects
  • health care facilities
  • schools
  • farming operations
  • fire services
  • police services
  • amusement parks

The new Regulation’s basic requirements are:

-Employers must take “all measures reasonably necessary in the circumstances to protect workers from exposure to hazardous sound levels”

-The noise-protection measures must “include the provision and use of engineering controls, work practices” and, where required (and permitted), hearing protection devices

-In general, every employer must ensure that “no worker is exposed to a sound level greater than an equivalent sound exposure level of 85 dBA, Lex,8” (as calculated according to the Regulation) without requiring workers to wear hearing protection devices

-Hearing-protection devices are a secondary (not primary) noise-protection solution and will be permitted in only certain listed circumstances

-Employers must, where practicable, post a warning sign at every approach to an area where the sound level regularly exceeds 85

-Employers who provide hearing-protection devices must provide appropriate hearing-protection training to workers who use those devices.

The Regulation may be found online here.

July 1, 2016: All Ontario employers must comply with new noise regulation

Does your safety policy require an accident investigation? Court suggests investigation file may not be litigation privileged

An Alberta judge has suggested that if a workplace safety policy or program requires that certain accidents be investigated, then the accident investigation reports may not be subject to litigation privilege – meaning that government safety investigators may be entitled to obtain the investigation file.

The comment was made in a case that involved an investigation by an in-house lawyer after a “whistleblower” complained about a potential conflict of interest by a former employee.  Because the company had not shown that the dominant purpose of the investigation was to assist in anticipated litigation, rather than to satisfy the requirements of the company’s whistleblower program, the investigation documents were not litigation privileged.

The court offered the following analogy, which is of interest to health and safety professionals:

“A useful analogy might be drawn to the many reported cases dealing with fire or explosions at industrial facilities. When such event occurs it is obviously a real possibility that an investigation will result in litigation against, for example, the manufacturer of faulty equipment. However, the owner of the facility likely has workplace safety programs. Defendants to litigation are entitled to explore through cross-examination the parameters of the workplace safety program in order to advance an argument that, while anticipated litigation was one of the reasons for the investigation, the requirements of the workplace safety program was an equal reason for the investigation. Likewise, the defendants in this case are entitled to explore through cross-examination, inter alia, the extent to which the investigation which occurred was required under Talisman’s whistleblower program.”

While, in the whistleblower case, the company was not able to rely on litigation privilege to avoid turning over the investigation documents to the other side in a civil lawsuit, the court decided that the company could rely on legal advice privilege (also called “solicitor-client privilege”).  The court held that one of the purposes of the investigation was to ascertain the facts in order to get legal advice from their in-house counsel and, if the matter proceeded further, their outside counsel.  As such, the investigation file was subject to legal advice privilege and the company was not required to give it to the opposing party.

Employers should ensure, when faced with a serious accident, that they consider retaining legal counsel promptly to provide advice and to attempt to attach “legal advice privilege” to the investigation file. Otherwise, the employer may – depending on what its safety program says about investigations – be required to turn over the entire investigation file to the government safety investigators.

Talisman Energy Inc v Flo-Dynamics Systems Inc, 2015 ABQB 561 (CanLII)

 

Does your safety policy require an accident investigation? Court suggests investigation file may not be litigation privileged

Worker’s fainting at sight of his own blood was “work-related”: U.S. OSHA

We all know people who get light-headed at the sight of blood.  The U.S. Occupational Safety and Health Administration (OSHA) has issued an interpretation letter, advising that an incident in which a worker fainted at the sight of his own blood was “work-related”.

The worker in question had scratched his finger on a vinyl saw clamp at work. The injury was minor, and a Band-Aid was the only first aid treatment sought. However, while a co-worker applied the Band-Aid, the worker fainted at the sight of his own blood. He regained consciousness and no further treatment was needed.

The worker’s employer asked OSHA to clarify whether the event was work-related so that the employer was required to “record” the event on an OSHA form. The law required the employer to report a work-related injury or illness if it results in unconsciousness.

Because the employee fainted, OSHA determined that the fainting spell was work-related.

The case is a reminder that some injuries and accidents that appear not to be work-related, may be reportable.  For instance, in Ontario, employers are required to report “critical injuries” to the Ontario Ministry of Labour, including “an injury of a serious nature that . . . produces unconsciousness”.

OSHA’s interpretation letter may be read here.

Worker’s fainting at sight of his own blood was “work-related”: U.S. OSHA

B.C. introduces more legislation to improve workplace safety after mill fires

British Columbia recently introduced legislation to promote workplace safety in sawmills.  Bill 35 will require more extensive involvement from members of the joint health and safety committee during workplace accident investigations, and the immediate reporting of fires or explosions that could cause serious injury to a worker.

Bill 35 is the government’s response to two tragic mill accidents, the subsequent coroners’ reports, as well as specific proposals in the 2014 WorkSafeBC Review and Action Plan. In 2012, two mill explosions, one in Prince George, and one in Burns Lake, killed four men and injured dozens of other workers. Following those accidents, a coroners’ inquest was undertaken which resulted in specific recommendations relating to workplace safety and the standards required for building and refitting mills.  In addition, WorkSafeBC published its 2014 Review and Action Plan that included recommendations to make sawmills a safer place to work and to improve British Columbia’s investigation and inspection regime.

The government accepted all of the recommendations made in the WorkSafeBC Review and Action Plan Report. Bill 35 proposes amendments to the Workers Compensation Act as part of the broader undertaking to improve safety at sawmills.

The proposed legislative changes include the following:

  • Employers must immediately report to WorkSafeBC all fires or explosions that have the potential to cause serious injury to a worker.
  • There must be meaningful participation by workers and employer representatives in employer accident investigations and mandates a specific role for workplace health and safety committees to provide advice to the employer on proposed equipment or machinery changes that may affect worker health or safety.
  • Employer investigation reports must be provided to the workplace health and safety committee or worker health and safety representative, or be posted at the work site.
  • WorkSafeBC will be involved in proactively assisting workplace health and safety committees in resolving disagreements regarding health and safety matters.

Bill 35 also builds on legislative changes made under Bill 9 earlier this year, which increased WorkSafeBC’s ability to promote and enforce occupational health and safety regulations and addresses administrative issues relating to WorkSafeBC’s annual report and service plan and to the WorkSafeBC Superannuation Plan.

If you have any questions about this proposed legislation, please contact Jillian Frank in our Vancouver office at jillian.frank@dentons.com.

 

 

B.C. introduces more legislation to improve workplace safety after mill fires

Doctor’s note prescribing “no overtime” was obtained due to labour tensions, not employee’s health: three-day suspension imposed

An employee who obtained a doctor’s note to justify his desire not to work overtime during a labour dispute, deserved a three-day suspension, an arbitrator has held.

After the employer announced that it would be reducing the amount of time off accrued by certain employees, employees responded in protest by dramatically reducing the amount of overtime worked.  The employer then sought and obtained an order from the British Columbia Labour Relations Board, ending the employees’ overtime ban because it was effectively an unlawful work stoppage.

The day after the employer informed employees of the scheduling that would result from the court order, the employee saw a doctor who issued a note recommending that the employee not work overtime.  The employee had a history of working a significant amount of overtime up until he obtained that doctor’s note. The employer dismissed the employee for relying on the doctor’s note to permit him to participate in an unlawful work stoppage (overtime ban).  The employer argued that the employee had, by obtaining the doctor’s note, “disingenuously sought to get around the” Labour Relations Board order.

The arbitrator decided that the employee had indeed sought to avoid working overtime due to labour relations tensions, and it was his subjective statements regarding his health that the doctor relied upon in writing the “no overtime” note.  However, he had been sincerely feeling stress at work. He had relatively long service of about fifteen years, and good performance evaluations.  As such, dismissal was excessive.  The arbitrator instead imposed a three-day suspension.

Rio Tinto Alcan v Unifor, Local 2301, 2015 CanLII 54521 (BC LA)

 

Doctor’s note prescribing “no overtime” was obtained due to labour tensions, not employee’s health: three-day suspension imposed

Alcoholic employee reinstated after employer’s compassionate approach put in question seriousness of previous warnings

There is an old, and somewhat cynical saying, that no good deed goes unpunished. While I personally disagree with that saying, one employer must believe it after a decision it received.

In the case, an adjudicator reinstated an alcoholic employee who was dismissed after he was found to be under the influence of alcohol at work.  The employee had previously been disciplined for alcohol consumption, lateness/absenteeism and abandoning his shift, and on one occasion had entered into a “last chance agreement”.

The employee worked for a New Brunswick government agency filling orders for supplies destined for hospitals.  His work environment of “stores” was said to be safety-sensitive.  In April 2014, two coworkers complained to a supervisor that the employee had been “drinking again”.  The supervisor asked the employee, “are you drunk?” but received no response.  The employee smelled of liquor.  He later saw the employee “drifting down the hallway”, staggering to one side.   After the employer concluded that the employee failed to provide an explanation for being under the influence of alcohol and had not taken responsibility for his conduct, the employer later terminated his employment.

The adjudicator held that the employee, as an alcoholic, suffered from a “disability” for the purposes of human rights legislation.  The adjudicator recognized that many of the employee’s coworkers had suffered anxiety and stress as the “struggled emotionally to deal with the situation they faced” due to his alcohol abuse.  The employer had been “more than patient for many years” and was “entitled to a productive and effective contribution from each of its employees each and every day” and did “not always get that” from the employee.

However, the employer was had given the employee some “leeway” in its responses to his absenteeism and drinking.  Rather than being “steadfast” in its warning of further discipline and following through on warnings, the employer showed “compassion”.  The adjudicator expressed concern that that approach created the general impression in the mind of the employee that the threat of dismissal was not serious – that is, that the employer’s compassionate approach would continue.  Effectively, the employer’s approach had led to the “shepherd boy crying ‘wolf'” phenomenon: the employee may not have believed that the employer would follow through on its warnings.

Further, there were no aggravating circumstances; in particular, there was no aggressive behaviour from the employee in the incident that led to his dismissal.  As such, the adjudicator held that the dismissal was excessive and that the employer had not yet approached the point of “undue hardship” in accommodating the employee’s alcoholism.

The adjudicator set aside the dismissal, and instead imposed a 30-day suspension followed by a leave of absence without pay for 16 months during which the employee could complete a detox/rehabilitation program. Also, his return to work would be subject to a last chance agreement to be negotiated by the parties.  If the employee did not complete the detox/rehabilitation program in 16 months, his employment would end.

Canadian Union of Public Employees, Local 1252 v Facilicorpnb, 2015 CanLII 54715 (NB LA)

Alcoholic employee reinstated after employer’s compassionate approach put in question seriousness of previous warnings

Lawyer’s harassment investigation report was not solicitor-client or litigation privileged: union entitled to a copy, says arbitrator

The mere fact that a lawyer prepared an investigation report does not make it privileged, a labour arbitrator has held, granting the union’s request for a subpoena to obtain the report.

The Durham Regional Police Association (the police union) filed a grievance alleging that the Association’s civilian members had suffered harassment. The Durham Regional Police Services Board (the employer) retained a lawyer to conduct a harassment investigation and prepare a report, which she did.  The Association requested a copy and the Board refused, claiming that the investigation report was protected by both solicitor-client privilege and anticipated-litigation privilege.

The arbitrator decided that the lawyer-investigator was retained to conduct an investigation into whether harassment occurred. She was not retained to conduct an investigation on the Board’s behalf and to assess its liability and provide legal advice.  The arbitrator noted that the lawyer-investigator was not the Board’s usual labour lawyer.  The lawyer-investigator’s retainer letter was also not a retainer for the provision of legal advice.  Importantly, the investigation was meant to be independent.  Effectively, she was acting as an independent investigator, not the Board’s labour lawyer.  As such, the investigation report was not covered by solicitor-client privilege.

With respect to anticipated-litigation privilege, the arbitrator stated that the dominant purpose for which the investigation report was prepared was not litigation.  Instead, the purpose of the report was to determine whether the harassment complaints were substantiated because the Board was committed to a harassment-free workplace.  Litigation was a mere possibility when the investigation was conducted and was not its dominant purpose.  As such, the investigation report was not protected by anticipated-litigation privilege.

The arbitrator concluded:

“There is so little evidence that the Investigation Report was prepared for the purposes of providing legal advice or in contemplation of litigation that if I were to find that it was privileged it would effectively mean that any time a solicitor is used for an independent harassment investigation an employer could claim privilege over the resulting report and related documents. That is not consistent with the jurisprudence or with good labour relations.”

This case is a reminder that employers and their counsel should carefully consider, up-front, whether they wish the investigator’s report to be independent or to be subject to privilege. If privilege is sought, the investigator’s retainer letter should clearly state that privilege is asserted, and whether both solicitor-client and anticipated-litigation privilege are claimed.  The Ontario Court of Appeal’s 2009 decision in R. v. Bruce Power Inc., 2009 ONCA 573 (CanLII) provides a good example of how privilege can be successfully asserted over a workplace investigation report.

Durham Regional Police Association v Durham Regional Police Services Board, 2015 CanLII 60920 (ON LA)

 

Lawyer’s harassment investigation report was not solicitor-client or litigation privileged: union entitled to a copy, says arbitrator

Safety contractor wins appeal of $1,000 administrative penalty under OHSA

Don’t be seen to cause a traffic jam that inconveniences a government health and safety officer.  Perhaps that is the real moral of this story.

A safety contractor was providing traffic control services on the Trans-Canada Highway in Nova Scotia where a bridge was under repair.  An Occupational Health and Safety Officer with the Nova Scotia government became caught in the resulting traffic jam.  While stuck in traffic, she tried by phone to put a stop to the bridge work so the traffic could clear.

Her main stated concern was that there was inadequate warning that traffic might be slowing down.  She wrote a compliance order against the safety contractor. Three months later she issued a $1,000.00 administrative penalty for allegedly failing to ensure that traffic control staff were provided with appropriate training, facilities and equipment.

The Nova Scotia Labour Board held that “these are very vague allegations”. It decided that the mere fact that the situation occurred did not prove that the traffic control staff lacked training and resources. The health and safety officer did not appear to have a clear understanding of what training or direction the safety contractor had provided on that day.  She drew her conclusions from limited information and not from a measured review. She did not contact the company in the days after the incident to give them the opportunity to address her concerns.

The Labour Board stated:

“The submissions of the Appellant impress me that the company is expert in its field and could have addressed many of the concerns of the officer, had she made the additional effort to contact company officials in the days following the incident.”

In the end, there was not a proper factual basis to support the Administrative Penalty, which was set aside.

Safety First Contracting (1995) Limited (Re), 2015 NSLB 148 (CanLII)

Safety contractor wins appeal of $1,000 administrative penalty under OHSA

OLRB orders employer to reinstate apartment building superintendent allegedly fired for reporting workplace violence

The Ontario Labour Relations Board has ordered an employer to reinstate an apartment building “office administrative superintendent” who alleged that she was fired after reporting that her husband, the maintenance superintendent at the same building, threatened their daughter and was about to hit her.  They resided in an apartment in the building.

Importantly, the employer did not file a Response to the employee’s OLRB Application, meaning that the OLRB’s decision was of a “default nature”.

The employee alleged that after she reported the incident of workplace violence, the property manager told her to “calm down” and not to call the police, and that she should “let it go” and forgive her husband.  The employee moved to a temporary shelter and reported the matter to police.  Her husband was arrested by police and was also fired by her employer.

The employee stated that she was without income, and would be required to change her daughter’s school.  The OLRB found that on the basis of the facts pleaded by the employee, she was “in a highly vulnerable and precarious position”.  Her allegations provided an “arguable case” that she was fired for asking the employer to comply with its workplace violence obligations under the Occupational Health and Safety Act; she had shown that she would suffer harm and real prejudice if she were not reinstated; and the employer had not provided any evidence that it would suffer prejudice or harm if she were reinstated pending the final determination of her safety-reprisal complaint.

As such, the OLRB decided to order the employer to reinstate the employee to her job “forthwith on the same terms and conditions” (which would, it appears, also require the employer to give her back her apartment in the building) pending the final outcome of the employee’s safety-reprisal case.  If nothing, else, this case demonstrates why employers should file a Response to all safety-reprisal claims made against them.

A.A. v B.B. Ltd., 2015 CanLII 53737 (ON LRB)

 

OLRB orders employer to reinstate apartment building superintendent allegedly fired for reporting workplace violence