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U.S. construction companies and manager face fines of nearly $2 million for exposing workers to asbestos

The U.S. Occupational Safety and Health Administration (OHSA) has cited a construction company and its manager for asbestos-related violations and imposed fines of almost $2 million.  Safety regulators are increasingly taking asbestos violations very seriously.

OSHA inspectors determined that the company and some of its supervisors told employees to remove asbestos-containing materials during renovation of a school. Many of the employees were temporary foreign workers whose first language was not English. OSHA’s investigation also found that management threatened some workers with termination if they spoke with OSHA inspectors.

Further, OSHA inspectors found that the manager and the companies failed to warn employees of the danger, even though they were aware of the asbestos hazard.  Further, they did not ensure that the workers used appropriate work methods and respirators, and did not train them on the hazards of working around asbestos.

The company and manager had 15 days to appeal to the independent Occupational Safety and Health Review Commission.

OSHA’s News Release can be accessed here.

 

U.S. construction companies and manager face fines of nearly $2 million for exposing workers to asbestos

FOI adjudicator denies access to MOL inspector’s reasons for recommending no OHSA charges against employer

An adjudicator with the office of Ontario’s Information and Privacy Commissioner has denied access to a Ministry of Labour inspector’s reasons for recommending that Occupational Health and Safety Act charges not be laid against an employer after a fatal motor vehicle accident involving the death of eleven people including migrant workers.

The requester wanted a copy of the Ministry of Labour’s “employment safety investigation report”.  The MOL granted “partial access”, apparently handing over some parts of the investigation report but not the factors and considerations that went into the inspector’s recommendation that OHSA charges not be laid.

The requester argued that the public interest in safety, and the need to subject MOL enforcement and decisions to public scrutiny, required that the factors and considerations be made public.

The adjudicator refused to grant access to the factors and considerations that went into the inspector’s decision not to recommend OHSA charges.  Instead, the information fell squarely within the exemption in section 13(1) of the Freedom of Information and Protection of Privacy Act which provides that advice or recommendations of a public servant need not be disclosed.  The public interest did not require disclosure.  In fact, the public interest suggested that the information not be disclosed, because otherwise Ministry of Labour inspectors may feel constrained in providing full, free and frank advice.

Ontario (Labour) (Re), 2015 CanLII 31652 (ON IPC)

 

 

FOI adjudicator denies access to MOL inspector’s reasons for recommending no OHSA charges against employer

Employer permitted to use “cumbersome” two-page sick leave medical form implemented after STD costs increase, arbitrator rules

An employer’s introduction of a new two-page sick leave medical form did not violate the collective agreement, a labour arbitrator has held.

The employer introduced the form in response to the increasing costs of short-term disability claims and absences.  The new policy required that for absences greater than two days, the employee must ask his or her physician to fill out a two-page medical form.  The form did not seek information regarding a diagnosis but did ask the physician to indicate the date of the injury, whether it was work-related or not, whether it had been reported to the Workplace Safety and Insurance Board, and if the injury was work-related, whether it was recurring.  It also asked the physician to indicate any physical or cognitive limitations as well as the expected duration of those limitations and the expected return-to-work date.

The union argued that the medical form was simply too cumbersome and bureaucratic.  The employer noted that in simple cases, the physician did not need to fill out the entire form, and there were no repercussions to employees where the physician refsed to fill out all or part of the form.

The arbitrator decided that the employer did have the right to the information in the form.  Also, given the increasing cost of STD claims, it was reasonable for the employer to seek additional information that could encourage earlier returns to work.  Although the form may be cumbersome, particularly for simple illnesses such as the flu, there was no information in the form to which the employer was not entitled.  The employer was within its rights to implement the new medical form.

United Steelworkers Local 7175 v Veyance Technologies Canada Inc, 2015 CanLII 30713 (ON LA)

Employer permitted to use “cumbersome” two-page sick leave medical form implemented after STD costs increase, arbitrator rules

Arbitrator strikes down employer’s total ban on smoking during shift

An employer went too far when it banned smoking by employees during their shift, including during breaks and off the employer’s premises, a labour arbitrator has ruled.

Starting in January 2015, the employer – which manufactured wire and cable products – banned smoking anywhere on company property, including outside of the plant.  Employees were also prohibited from leaving company property during their breaks, so that effectively employees could not smoke during their shift.

The union filed a grievance against the ban.  The arbitrator agreed that the employer had the right to prohibit smoking on its property.  He acknowledged that smoking is harmful to smokers, their colleagues, and the employer generally.  However, smoking is still a legal activity in Ontario and the employer could not, according to the arbitrator, prohibit employees from smoking off company property during their break, even though employees were paid during their break.

Given that it took only a minute or two to leave the plant and exit company property, it was an unreasonable exercise of management rights – and therefore a violation of the collective agreement – for the employer to prohibit employees from smoking off property during break time.

It is important to note that this decision is based on labour relations law.  The same result would not necessarily apply in a non-unionized setting.  In those workplaces, employees would need to assert that the smoking ban was discriminatory under human rights legislation based on a disability (addiction).

United Steelworkers Local 7175 v Veyance Technoligies Canada Inc, 2015 CanLII 30713 (ON LA)

 

 

Arbitrator strikes down employer’s total ban on smoking during shift

Another lesson about clarity in settlements: employer may file WSIB appeal after mediated settlement, despite union’s objection

An employer’s appeal challenging a departed employee’s workers’ compensation entitlements may proceed, despite being filed after the employer, union and employee reached a settlement at mediation.

The union had filed earlier grievances relating to the employee’s health and safety and her dismissal.  The union, employer and employee settled the grievances  at mediation and signed Minutes of Settlement under which the employee resigned.

After the Minutes of Settlement were signed, the employer filed an appeal challenging the worker’s entitlement to Workplace Safety and Insurance Board loss of earnings benefits relating to an earlier workplace injury.  The union claimed that that appeal breached the Minutes of Settlement.   The dispute went in front of an adjudicator with the Grievance Settlement Board.

The adjudicator noted that the Minutes of Settlement settled all issues relating to the employee’s employment and the termination of her employment.  However, the employer had not released any of its rights whatsoever.  Importantly, paragraph 9 of the Minutes of Settlement prohibited the employee from pursuing reinstatement and reemployment but went on to state, “this paragraph is without prejudice to the parties’ position with respect to any other matter under the” Workplace Safety and Insurance Act.

The adjudicator decided that although when the Minutes of Settlement were signed, the employee was receiving loss of earnings benefits under the Workplace Safety and Insurance Act, there was no guarantee in the Minutes of Settlement that she would continue to do so.  As such, the employer’s WSIB appeal did not breach the Minutes of Settlement.

Ontario Public Service Employees Union (Robbescheuten) v Ontario (Community Safety and Correctional Services), 2015 CanLII 32419 (ON GSB)

Another lesson about clarity in settlements: employer may file WSIB appeal after mediated settlement, despite union’s objection

U.S. OSHA and Health Canada continue “partnership” to coordinate labelling and classification of hazardous chemicals, implement GHS

Health Canada and the U.S. Occupational Safety and Health Administration (OSHA) have announced that they will “continue their partnership” to “align United States and Canadian regulatory approaches regarding labelling and classification requirements for workplace chemicals through the Regulatory Cooperation Council.”

In 2013, Health Canada and OSHA signed a Memorandum of Understanding to promote ongoing collaboration on implementing the Globally Harmonized System of Classification and Labelling (GHS) in both countries.  Countries around the world are adopting GHS, which provides a consistent international system for chemical classification and labelling.

OSHA and Health Canada say that they intend to reduce inconsistencies among hazard communication regulations and to provide concise information to protect workers exposed to hazardous chemicals.  The two countries intend to implement a system allowing the use of one label and one safety data sheet that would be compliant in both countries.

In February 2015, the Government of Canada published in the Canada Gazette, Part II the Hazardous Products Regulations (HPR) which modified the Workplace Hazardous Materials Information System (WHMIS) 1988 to incorporate GHS.

While those amendments came into force February 11, 2015, there will be a transition period during which suppliers and employers can comply with either the old WHMIS system (WHMIS 1988) or the new WHMIS system (WHMIS 2015) (the transition period rules and periods differ for employers and suppliers).

For further information on the transition, in Canada, to WHMIS 2015, click here.

U.S. OSHA and Health Canada continue “partnership” to coordinate labelling and classification of hazardous chemicals, implement GHS

April 1, 2015: New Working at Heights Training Requirements on Construction Projects

Falls from heights are one of the leading causes of critical injuries and fatalities in Ontario workplaces according to the Ministry of Labour. As a result, beginning April 1, 2015, employers in Ontario must ensure that workers on construction projects who are required to use certain methods of fall protection complete an approved Working at Heights training program.

The Occupational Health and Safety Awareness and Training Regulation (O. Reg 297/13) (see our previous posts here) has been amended to provide for mandatory Working at Heights training. These amendments come into force April 1, 2015.

However, there is a two-year transition period for certain workers: the Working at Heights training requirements do not apply until April 1, 2017 in respect of a worker who has completed training that meets the requirements of the Construction Projects Regulation (section 26.2 of O. Reg. 213/91) before April 1, 2015. If a worker has not been adequately trained in the use of fall protection systems before April 1, 2015, then the training requirements apply as of April 1, 2015.

Who Must be Trained?

The Working at Heights training requirements apply to workers on construction projects who are required under the Construction Projects Regulation to use any of the following methods of fall protection:

  • A travel restraint system;
  • A fall restricting system;
  • A fall arrest system;
  • A safety net;
  • A work belt; or
  • A safety belt.

The Working at Heights training requirements apply in addition to the existing training requirements under the Construction Projects Regulation with respect to fall protection systems. The fall protection systems training under the Construction Projects Regulation requires, among other things, that a worker who may use a fall protection system is adequately trained in its use and given adequate oral and written instructions by a competent person.

Workers who work at heights and use fall protection systems at workplaces not covered by the Construction Projects Regulation do not have to complete the Working at Heights training at this time.

What Will the Training Cover?

The Chief Prevention Officer (CPO) has established Working at Heights training standards for training programs and for training providers.

The Working at Heights Training Program Standard contains the required information that must be included in a CPO-approved training program. Specifically, the Working at Heights training program will consist of two modules:

  • Module 1: Working at Heights Basic Theory – covers foundational elements on how to work safely at heights. It must be at least three hours long.
  • Module 2: Working at Heights Practical – provides more advanced information on fall protection systems and includes hands-on demonstration of equipment and procedures. It must be at least three and a half hours long.

The Working at Heights Training Provider Standard outlines the requirements for training providers seeking approval by the CPO to deliver an approved training program.

What are the Responsibilities of an Employer?

In respect of a worker who may use one of the methods of fall protection listed above, employers are required to ensure the following:

1. workers have successfully completed a Working at Heights training program that is approved by the CPO as meeting the Working at Heights Training Program Standard that applied at the time of the training

2. the training provider is approved by the CPO as meeting the Working at Heights Training Provider Standard that applied at the time of the training

3. the validity period of a worker’s training has not expired

4. a record of the Working at Heights training is maintained and includes the following information:

  • the name of the worker
  • the name of the approved training provider
  • the date on which the approved training was successfully completed
  • the name of the approved training program that was successfully completed

5. the record of training is available to a Ministry of Labour inspector on request

What is Required in a Record of Training and How do Workers Get It?

According to the Ministry of Labour, an approved training provider is required to provide a worker with proof of training upon successful completion of the training program.

The approved training provider must also notify the CPO of a worker’s successful completion of an approved Working at Heights training program. Upon receipt of such notification, the CPO will issue a wallet-sized proof of training card to the worker. A copy of a worker’s proof of training card issued by the CPO is considered a training record.

The Ministry of Labour will keep a secure, centralized database of all workers who successfully completed the training (collected by the CPO under the authority of the OHSA).  Workers and current or potential employers (with the worker’s consent) will be able to access information about a worker’s successful completion of a Working at Heights training program.

For How Long is the Training Valid?

The training is valid for three years from the date of successful completion of the training program. According to the Ministry of Labour’s “Frequently Asked Questions”, once a worker’s training is no longer valid, the worker can take an approved half-day “refresher” training program (which covers the contents of Module 2) to renew the validity of his or her training.

A worker does not need to retake the Working at Heights training if the worker changes employers during the three-year validity period. An employer should request that new employees provide proof of completion upon hiring.

How Can an Employer Find a CPO-Approved Provider?

The Ministry of Labour website lists CPO-approved Working at Heights training providers and programs, as well as the dates on which they were approved. At the time of writing, there are seven CPO-approved providers listed on the website.

If an employer wishes to deliver “in-house” training to its workers, it must seek CPO approval to become a training provider. More information on the provider application can be found here.

What are the Potential Consequences if an Employer does not Comply?

A Ministry of Labour inspector may request that an employer provide copies of records of Working at Heights training for its workers, or a worker provide a copy of his or her CPO-issued proof of training.  If an employer has not complied with the mandatory Working at Heights training requirements, an inspector may take enforcement action, including issuing orders requiring an employer to comply, issuing a stop work order where an imminent hazard exists, or prosecuting an employer under the Provincial Offences Act, where appropriate.

Keep checking www.occupationalhealthandsafetylaw.com for further updates on this topic.

April 1, 2015: New Working at Heights Training Requirements on Construction Projects

“Flagrant disregard” of OHSA, failure to report, gets construction company convicted on 5 OHSA charges

A construction company that tried to blame a worker’s fall on his untied boots, has been found guilty of all 5 charges against it under Saskatchewan’s The Occupational Health and Safety Act.

The 18-year-old worker, who had been on the job for 6 or 7 hours, fell at least 20 feet and broke his wrist and 2 vertebra.  He had been working on roof trusses that were 20 to 25 feet off the ground. He had not received any training and there was no fall protection equipment provided.

The contruction company argued that the worker was not its employee but rather was an independent contractor. The court rejected that argument, finding that the worker was under the direction of the owner’s son; had no independent control of his employment; his wages were set by the company’s owner; no one ever suggested to him that he was a self-employed contractor; and he considered himself to be an employee.

The contruction company failed to report the accident to Saskatchewan Occupational Health and Safety. A representative of Saskatchewan Occupational Health and Safety testified that they had received notice from Worker’s Compensation, not the company.  As such, the court convicted the company of failing to report to Saskatchewan Occupational Health and Safety where a worker is required to be admitted to a hospital as an inpatient for a period of 72 hours.

The court also convicted the employer of failing to train; not providing fall protection equipment; failing to provide competent supervision (which was clear because the company violated basic requirements under the OHSA); and failing to ensure that the worker wore approved industrial protective headgear.

The owner of the company argued that the injured worker caused the accident as his boots were not tied.  The court noted that that was irrelevant as the employer had a duty to supervise and ensure proper safety procedures on the work site were followed.  It is generally not prudent to attempt to blame the injured worker for a relatively minor transgression when the company committed serious safety violations.

As such, the court found the company guilty on all 5 charges under The Occupational Health and Safety Act.

R. v Fred Thue Construction Ltd., 2014 SKPC 168 (CanLII)

“Flagrant disregard” of OHSA, failure to report, gets construction company convicted on 5 OHSA charges

“Who is a supervisor?” Ontario Ministry of Labour releases guideline

Employers often struggle with the question of who is a “supervisor” under the Ontario Occupational Health and Safety Act. The answer to that question is obviously important because supervisors have legal duties under the OHSA, violations of which can lead to charges and fines.

The Ontario Ministry of Labour has recently released a “guideline” called, “Who is a Supervisor under the Occupational Health and Safety Act?”

The MOL provides, in that guideline, two lists of “powers and responsibilities that may be exercised or carried out by a supervisor”. The MOL says that the first list includes powers that are “primary indicators of being in a supervisory role”, and the second list “includes responsibilities that would generally be carried out on the job site by a front-line supervisor who interacts directly with workers”:

“1.  Powers that are primary indicators of being in a supervisory role include the power to:

  • hire, fire or discipline,
  • recommend hiring, firing or discipline,
  • promote, demote or transfer,
  • decide a worker’s rate of pay,
  • award bonuses,
  • approve vacation time,
  • grant leaves of absence, or
  • enforce procedures established to protect worker health and safety.

2.  A person with none of the powers listed above could still be a supervisor as defined in the OHSA, if he or she has some of the following responsibilities:

  • determining the tasks to be done, and by whom,
  • directing and monitoring how work is performed,
  • managing available resources such as staff, facilities, equipment, budget,
  • deciding on and arranging for equipment to be used on a job site,
  • deciding the make-up of a work crew,
  • deciding on and scheduling hours of work,
  • dealing directly with workers’ complaints, or
  • directing staff and other resources to address health and safety concerns.”

The MOL guidance goes on to provide examples as well as summaries of relevant court decisions.

Ontario employers, particularly those in safety-sensitive businesses, should familiarize themselves with the guideline, and ensure that all supervisors (1) know that they are “supervisors” under the OHSA, (2) have taken the MOL’s required basic supervisory safety awareness training, (3) are fully aware of their duties under the OHSA, and (4) have received the workplace-specific safety training necessary for them to comply with their duties under the OHSA.

“Who is a supervisor?” Ontario Ministry of Labour releases guideline

Supervisor fined after workers exposed to asbestos dust

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

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

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

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

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

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

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

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

 

Supervisor fined after workers exposed to asbestos dust

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

No damages awarded for unforeseeable workplace assault, but employer ordered to rewrite harassment policy

The fact that an employee had engaged in harassment did not make it foreseeable that he would assault a coworker, a labour arbitrator has held.  However, the company’s harassment policy was deficient and needed to be rewritten.

The decision arose from a union grievance alleging that the employer had not provided an injury-free workplace.  An employee, Kryzanowski, alleged that another employee, Wilson, had struck him in the head from behind with a “rather substantial sized plastic lunch pail”. The union alleged that the company had breached the collective agreement and the Saskatchewan Occupational Health and Safety Act because of its actions or inactions both before and after the incident.

The arbitrator stated that there was no doubt that the assault constituted harassment as defined in the OHSA.  “A serious physical assault, such as this one, is perhaps the most profound single incident of harassment that exists.”  However, according to the arbitrator, the core question was whether the company, through its management personnel and supervisors, knew or should have known that Wilson was a physical threat to other employees and failed to take steps to prevent it.

The arbitrator decided that although Wilson had demonstrated “meanness and bullying” behaviour towards Kryzanowski through numerous disrespectful comments, and the company’s management were sufficiently aware of Wilson’s conduct to know that he was mean-spirited and had anger problems, none of his previous actions were physical alterations and there was no evidence that he was on the verge of physically attacking a fellow employee.  The assault was not foreseeable by the company.

As such, Kryzanowski was not entitled to damages for the assault.  However, the company was ordered to keep Wilson and Kryzanowski on different shifts and direct Wilson to have no contact with Kryzanowski.

Lastly, the arbitrator found that the company’s harassment policy did not comply with the OHSA and regulations in that it was not kept current and did not include specific contents required by the regulations.  The arbitrator ordered the company to “take immediate steps to comply with the Occupational Health and Safety Act by writing its harassment policy to be compliant with the Act and regulations.”

Shaw Pipe Protection Limited v Construction and General Workers’ Local Union No 180, 2013 CanLII 94439 (SK LA)

No damages awarded for unforeseeable workplace assault, but employer ordered to rewrite harassment policy

MOL safety blitz results show many new businesses non-compliant with basic requirements

The results of a recent Ontario Ministry of Labour safety blitz shows many new small businesses violate basic legal requirements such as posting a copy of the Occupational Health and Safety Act.  And non-compliant employers can expect future visits from MOL inspectors.

The MOL says that between April 1, 2013 and March 31, 2014, its inspectors visited new small businesses in the industrial sector that had fewer than 20 workers.  The MOL says that it focused on “businesses that had registered with the Workplace Safety and Insurance Board (WSIB), but had no prior contact with the ministry.”

Some of the  most common compliance orders issued by MOL inspectors in the blitz were: post a copy of the Occupational Health and Safety Act; prepare a health and safety policy and maintain a program; have a worker health and safety representative; have the health and safety representative conduct monthly inspections; provide “information and instruction” on workplace harassment; and maintain a workplace violence prevention program.

The MOL states that inspectors visited workplaces in the industrial sector including retail establishments, restaurants, wood and metal fabrication establishments, industrial services, wholesalers, automotive manufacturers and vehicle sales and service workplaces.

The MOL’s  enforcement initiative is being repeated in the 2014-2015 fiscal year, with each MOL industrial inspector expected to inspect four to eight small businesses with 50 or fewer workers, which have not been previously registered or inspected by the ministry. The MOL says that this initiative will “increase small business awareness of the workplace parties’ roles and responsibilities under OHSA and its regulations”, “promote awareness and compliance with new mandatory occupational health and safety training for workers and supervisors that came into effect on July 1, 2014”, and “support vulnerable workers by making them aware of their rights under the OHSA and the resources available to help them”.

As we have previously advised, employers should, in particular, ensure that they prepare and post all required postings under the OHSA, since doing so will show the MOL inspector that the employer is aware of its basic obligations and has a safety program in place.  See here for our article on health and safety posting requirements in Ontario.

MOL safety blitz results show many new businesses non-compliant with basic requirements

Employer asks HRTO for permission to access employer’s own “Occupational Health and Claims Management” file on employee

Must an employer obtain permission from the Human Rights Tribunal of Ontario to access medical records held in the employer’s own file on an employee who filed a human rights complaint with the Tribunal? That question is raised by a recent Tribunal decision.

The employer submitted that Tribunal authorization was necessary “because there may be a conflict with respect to privacy standards required by applicable legislation. The respondent indicates that the expectations and protections under the Personal Health Information Protection Act, 2004 . . . for health information custodians regarding disclosure may be different from the duty imposed on employers by the Occupational Health and Safety Act . . . The respondent submitted that the Tribunal has granted the orders it seeks in other cases in which similar circumstances arose.”

The employer was likely referring to subs. 63(2) of the OHSA which states:

“No employer shall seek to gain access, except by an order of the court or other tribunal or in order to comply with another statute, to a health record concerning a worker without the worker’s written consent.”

Because the employee alleged disability-discrimination relating to her post-traumatic stress disorder, the Tribunal was satisfied that some but not all of the documents contained in the Occupational Health and Claims Management file were arguably relevant and that the employer required access to them in order to meaningfully respond to the employee’s human rights complaint.  Access was granted.

The case illustrates that employers seeking to use information in an employee medical file for litigation purposes should proceed cautiously and should seek a court or Tribunal order if necessary.

Feres v. Toronto Transit Commission, 2014 HRTO 980 (CanLII)

Employer asks HRTO for permission to access employer’s own “Occupational Health and Claims Management” file on employee

MOL permits employer to have multi-workplace joint health and safety committee, union’s challenge dismissed

A union has lost a request to suspend a Ministry of Labour Director’s order allowing a school board to establish a multi-workplace joint health and safety committee.

The Ontario Occupational Health and Safety Act requires a joint health and safety committee at each workplace where twenty or more workers are regularly employed.  The default rule under the OHSA is that each workplace should have its own committee.  However, the Minister of Labour or his or her delegate has the power to make an Order permitting one joint health and safety committee to cover multiple workplaces.

The Peel District School Board received an Order from a Ministry of Labour Director permitting it to establish and maintain a multi-workplace joint health and safety committee according to certain “terms of reference”.

The Canadian Union of Public Employees challenged the MOL Director’s multi-workplace Order at the Ontario Labour Relations Board, and asked the OLRB to suspend that Order pending the outcome of the appeal.

The OLRB refused to suspend the Order, deciding that the OLRB “appears to have no jurisdiction to deal with anything but an inspector’s order”, not an Order of the Minister of Labour or an MOL Director.  As such, the OLRB had no authority to suspend the multi-workplace Order.

This decision shows that when one workplace party asks the Minister of Labour to permit a multi-workplace joint health and safety committee, the time for parties to make submissions is before the Minister (or MOL Director) makes his or her decision.  Effectively, there is no appeal to the OLRB.

Canadian Union of Public Employees v Peel District School Board, 2014 CanLII 38304 (ON LRB)

MOL permits employer to have multi-workplace joint health and safety committee, union’s challenge dismissed