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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

Project Manager for Metron Construction convicted of criminal negligence in Christmas Eve fatalities. Three individuals and two companies now convicted

The project manager who supervised the four workers who died after a swing stage scaffold collapsed on Christmas Eve, 2009, has been found guilty on four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm.  Vadim Kazenelson received the verdict today.

The court has not yet imposed his sentence.

Five parties have now been found guilty of safety-related offences as a result of this tragic accident: Metron Construction Corporation, a director of Metron, Swing N Scaff Inc., a director of Swing N Scaff Inc. (all of which received fines), and Mr. Kazenelson.

As we previously reported, the total of safety fines imposed for the December 24, 2009 swing stage collapse fatalities is $1,240,000.

According to the Ministry of Labour, at least six workers were on the swing stage suspended 13 floors above the ground when it broke apart in the middle and collapsed. Ministry of Labour investigators found that the welds on the platform were inadequate. Tragically, four workers died.

Swing N Scaff Inc., the company that supplied the swing stage platform (a suspended work platform), had previously pleaded guilty to the Occupational Health and Safety Act offence of failing to ensure that a suspended platform and/or a component supplied to Metron Construction Corporation was in good condition.  It was fined $350,000.00.

The director of Swing N Scaff Inc. had previously pleaded guilty to failing to take all reasonable care to ensure a suspended platform was in good condition and that a platform weighing more than 525 kilograms was designed by a professional engineer in accordance with good engineering practice.  He was fined $50,000.00 under the Ontario Occupational Health and Safety Act.

Previously, Metron Construction Corporation was fined $750,000.00 for criminal negligence under the “Bill C-45″ amendments to the Criminal Code; that amount was increased on appeal from the $200,000.00 fine set by the trial justice.

A director of Metron Construction Corporation was previously fined $90,000.00 under the Ontario Occupational Health and Safety Act for failing to ensure that non-English speaking workers received written material in their native languages and failing to ensure that training records were maintained; failing to ensure that the swing stage was not defective or hazardous (by allowing it to be used without having received any of the required information with respect to its capacity and use); and failing to ensure that the swing stage was not loaded in excess of the load that the platform was designed and constructed to bear.

Project Manager for Metron Construction convicted of criminal negligence in Christmas Eve fatalities. Three individuals and two companies now convicted

“Creative sentence” imposed for OHSA violation: company must give 150 hours of safety presentations on case, plus pay fine

A Nova Scotia court has imposed a “creative sentence” for a violation of the Occupational Health and Safety Act, requiring the company to make safety presentations in addition to paying a fine.

A journeyman electrician employed by the company was electrocuted when he made a “tragic, fatal miscalculation”, deciding to work on an energized system.  The company was found guilty of failing to institute any policies or practices that addressed workplace safety, but instead relying exclusively on the employee being an experienced and safety-conscious electrician.  Further, the company did nothing to ensure compliance with the Canadian Electrical Code.

The Nova Scotia Occupational Health and Safety Act allows for fines and “creative sentencing options” for violations.  The court imposed a fine of $35,000.00 on the company, acknowledging that the company was very small and was now insolvent and no longer operating.

In imposing a “creative sentence option”, the court noted that the electrician’s death and the lack of formal safety policies at the company “constitute a sobering message for other small businesses in the construction trades.”  The court decided to impose a “community service order” requiring the company to make a series of presentations on the facts of the case as indicated in the trial decision, the applicable regulatory requirements, the workplace safety issues involved, and the required due diligence. The presentations must total 150 hours and be completed in 18 months.

While Nova Scotia’s Occupational Health and Safety Act permits such “creative sentencing options”, other provinces such as Ontario do not.  While at the same time recognizing the obvious tragedy of the death, one can see that the reputational damage associated with a conviction in such a case, and 150 hours of presentations that recite the sad facts, is obvious.  In Ontario and a number of other provinces, the government prosecutors often issue press releases that identify the company, the violation and the amount of the fine.

R. v. R.D. Longard Services Limited, 2015 NSPC 35 (CanLII)

 

“Creative sentence” imposed for OHSA violation: company must give 150 hours of safety presentations on case, plus pay fine

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

Ontario Bill will increase fines for Workplace Safety & Insurance Act violations

The Ontario government has introduced legislation that will, among other things, quintuple the maximum fine against corporations for violating the Workplace Safety & Insurance Act, Ontario’s workers’ compensation act.

The Employment and Labour Statute Law Amendment Act, 2015 will, if passed, amend the Workplace Safety & Insurance Act to:

  • Increase the maximum fine for companies that violate the Workplace Safety & Insurance Act from $100,000 to $500,000 (including for offences such as knowingly making a false or misleading statement to the WSIB)
  • Make it illegal for employers to try to prevent workers from – or punish them for –  reporting a workplace injury or illness to the WSIB
  • Allow WSIB survivor benefits to be calculated based on the average earnings, at the time of diagnosis, of the deceased worker’s occupation rather than the current legislated minimum

The $500,000 maximum fine will equal the maximum fine for violations of the Ontario Occupational Health and Safety Act.  After the Bill has been passed, we will need to wait for some court decisions to see whether judges and justices of the peace hand down larger fines.

Unlike OHSA fines, which tend to result from serious workplace injuries, WSIA fines are typically for violations such as failing to register with the WSIB when required, failing to report a worker’s injury to the WSIB, or providing false information to the WSIB.  The WSIB’s conviction reports show that recent fines against corporations under the Workplace Safety & Insurance Act have been in the range of $2,500 to $25,000.

A press release from the Ontario government announcing the changes can be found here.

 

Ontario Bill will increase fines for Workplace Safety & Insurance Act violations

Cost of compliance with safety officer’s order could cause serious economic harm to company: Appeals Tribunal

A safety officer’s compliance order has been suspended where the cost of compliance would be so high that it could cause serious economic harm to the company.

The company performed stevedoring and terminal handling of containers at the Port of Montreal.  It employed “checkers” who used Toyota Echo and Yaris cars to move about the Port coordinating work.  A federal health and safety officer decided that the lighting levels of two terminals at the Port were below the prescribed standards.  She issued a direction requiring the employer to end the violation and increase lighting levels.
The company appealed and applied for a suspension of the direction.  The company presented evidence that in order to comply with the direction, it would need to install 10 new “lighting towers” at a total cost of at least $2 million.  The company also noted that it was impossible to install new lampposts by the compliance deadline because it was winter and the ground was frozen.

The federal Occupational Health and Safety Tribunal Canada decided that the direction should be suspended pending the outcome of the appeal. Firstly, there was a serious legal issue as to whether the direction was legally correct. Secondly, the company would suffer serious harm if the direction was not suspended.  First, it appeared impossible to comply with the direction, by the deadline, given the weather conditions and engineering work involved.  The company could suffer serious economic harm that could threaten the company’s viability, given the cost of compliance.  Further, the inspector took 9 months, after her inspection, to issue the direction, suggesting that the lighting levels did not pose a serious hazard.  Thirdly, the company was willing to put additional safety measures in place – including painting the cars a different colour, installing an LED light at the tip of the flag on the car, and adding lights to the checkers’ safety vests – that adequately protected the checkers.

The Tribunal agreed to suspend the direction on the condition that the company takes action, immediately, to put into place the additional safety measures.

Termont Montréal Inc. v. Syndicat des Débardeurs, ILA Local 375 and Syndicat des Vérificateurs, ILA Local 1657, 2015 OHSTC 7 (CanLII)

Cost of compliance with safety officer’s order could cause serious economic harm to company: Appeals Tribunal

Dentons’ Spring Employment Seminar Includes OHS Caselaw Highlights – June 5th

Please join us for a complimentary half-day employment law seminar in Toronto on Friday, June 5th. We will cover the following topics:

We are particularly delighted to welcome our special guest speakers The Honourable  K. Kellie Leitch, P.C., M.P., Minister of Labour and Minister of Status of Women, and Chantal Bernier, former Interim Privacy Commissioner of Canada.

Date & Time
Friday, June 5, 2015
Registration and breakfast:  8:30-9:00 a.m.
Welcome remarks and special guest speaker Chantal Bernier:  9:00-9:30 a.m.
Breakout sessions:  9:30-11:45 a.m.
Lunch and special guest speaker Scott Armstrong:  11:45 a.m.
Program ends: 1:00 pm

Location
Dentons Canada LLP
77 King Street West
5th Floor
Toronto, ON

For more information and to RSVP for this event visit our registration page.

Contact
Please contact toronto.events@dentons.com for any questions.

Dentons’ Spring Employment Seminar Includes OHS Caselaw Highlights – June 5th

Former Safety Manager Charged in U.S. Workplace Death

A former Safety Manager in California is among those charged with “willfully violating worker safety rules”, allegedly causing the death of a worker.

The former Safety Manager and the Director of Plant Operations of Bumble Bee Foods LLC, and the company itself, were charged “with three felony counts each of an Occupational Safety & Health Administration (OSHA) violation causing death.”

A news release by the Los Angeles County District Attorney states:

“Prosecutors said on Oct. 11, 2012, victim Jose Melena, 62, of Wilmington, entered a 35-foot-long cylindrical oven as part of his job duties at Bumble Bee’s Santa Fe Springs plant. The oven is used to sterilize cans of tuna.

“Coworkers were unaware that Melena was inside the oven when they loaded multiple carts, collectively containing about 12,000 pounds of tuna, closed the front door and started the oven. The victim inadvertently became trapped in the back of the super-heated, pressurized steam cooker.

“During the two-hour heat sterilization process, the oven’s internal temperature rose to about 270 degrees. Melena’s severely burned remains were discovered by a coworker, prosecutors said. Melena worked for the company for about six years.”

The charges against the former Safety Manager and the Director of Plant Operations carry a possible jail term of three years and/or a fine of $250,000.00.  The company faces a fine of up to $1.5 million if convicted.

Charges against safety professionals are quite rare.  As we noted in a previous post, in 2011 an Occupational Health and Safety Co-ordinator was found guilty of a violation of Nova Scotia’s Occupational Health and Safety Act for neglecting to follow up with his employer on recommendations in an asbestos report.

The Los Angeles County District Attorney’s news release may be found here.

Former Safety Manager Charged in U.S. Workplace Death

Worker awarded WSIB benefits after health and safety officer “grabbed him and threw him to the ground”

In an unusual case, a construction site superintendent has won entitlement to workers compensation benefits after persuading an appeals tribunal that he was assaulted by his employer’s health and safety officer and was not an active participant in the altercation.

The worker testified that on the day in question, as he entered a construction site office he was asked by the health and safety officer why he had stopped trades people from throwing garbage from the third floor.  He replied that he had been asked by the employer to move the garbage container to another location, at which time the health and safety officer said he had no authority to do that and got so upset that he grabbed him and threw him to the ground. The worker sought treatment and was diagnosed with ligament strain.  The health and safety officer was dismissed shortly thereafter.

The worker applied for WSIB benefits, but the employer opposed the request. The WSIB assigned an investigator who found that the worker was an active participant in the altercation.  The WSIB case manager denied him entitlement to WSIB benefits.

The employer did not participate in the worker’s appeal to the Workplace Safety and Insurance Appeals Tribunal. The WSIAT looked at earlier statements given by the worker, the health and safety officer and the employer.  The WSIAT determined that the worker was not the aggressor, and that the health and safety officer’s statement was “less than credible” because he did not even acknowledge that he had grabbed the worker and thrown him to the ground.  The fact that the worker pushed the health and safety officer away did not make him a participant in a fight; instead, it was a normal act of self-defence.

Interestingly, the WSIAT noted that there was no evidence that the worker had a history of being physically violent, while there was evidence that the health and safety officer was involved in at least one prior physical altercation.

WSIAT Decision No. 2140/14 (2014 ONWSIAT 2760)

Worker awarded WSIB benefits after health and safety officer “grabbed him and threw him to the ground”

Ontario MOL Releases 2015-16 Safety Inspection Blitz Schedule

The Ontario Ministry of Labour has released its schedule of workplace inspection blitzes for the period from May 2015 to March 2016. The schedule gives employers advance notice of what MOL inspectors will look for when they visit workplaces.

The “province-wide” occupational health and safety blitz schedule is as follows (the MOL has also released a schedule for its “Provincial Initiatives” and “Regional Initiatives”, which can be found on the MOL’s website):

Focus

Sector/Business Type

Date

Struck By Hazards  Construction May – June 2015
New and Young Workers  Industrial May – August 2015
Trenching Hazards  Construction July – August 2015
Mobile Equipment Traffic Control Measures  Mining July – August 2015
Material Handling  Industrial September 14 –
October 23, 2015
Heavy Equipment Operation  Construction October –
November 2015
Modular Training  Mining October –
November 2015
Safe Operation of Machinery  Industrial January 18 –
February 26, 2016
Occupational Disease

 

Mining February –
March 2016

 

 
Ontario MOL Releases 2015-16 Safety Inspection Blitz Schedule

Injured Worker’s Act was Not Foreseeable: OHSA Charges Against Employer Dismissed

Recently, an Ontario court dismissed Occupational Health and Safety Act charges against an employer where the injured worker’s unexpected and unauthorized act led to his injury.

The worker used an overhead crane to rotate a large spindle that weighed about 10,000 pounds.  He threaded a piece of rebar through one of the holes on the spindle and attached hooks for the overhead crane to each end of the rebar.  Tragically, the spindle fell off its stand and onto his foot, which had to be amputated.

The Ministry of Labour charged the employer with failing to ensure that the spindle was moved safely and failing to properly train the injured worker.

The court concluded that the injured worker’s supervisor had not instructed him to rotate the spindle.  The court also concluded that a reasonable employer could not have foreseen that the injured worker would rotate the spindle on his own and do it in the manner that he did, because: there was no evidence that a junior employee had ever previously tried to move a large piece of equipment like the spindle before; there was an unwritten protocol in place which the injured worker acknowledged that he understood; the way in which the worker rotated the spindle was contrary to his training; and he attempted to rotate the spindle on his own even though that work had always been done by material handlers or supervisors.  The injured worker conceded that he had failed to follow his training.

Further, the employer had provided an orientation session and overhead crane training to the injured worker.

Interestingly, the court also noted that the Ministry of Labour had not issued a stop work order requiring the employer to stop rotating spindles, suggesting that the inspector must have concluded that the employer’s procedure was adequate for the protection of workers.

In conclusion, the court held that the employer had established due diligence: it took every reasonable precaution in the circumstances, and could not have anticipated that the injured worker would rotate the spindle.  The OHSA charges were dismissed.

R. v. ABS Machining Inc., 2015 ONCJ 213 (CanLII)

Injured Worker’s Act was Not Foreseeable: OHSA Charges Against Employer Dismissed

Company owner convicted, fined under OHSA for failing to co-operate with MOL inspector

A widely-reported fire at a Kingston construction site that required the evacuation of a crane operator by helicopter, has resulted in fines against the owner of the company that supplied the crane operator.

To avoid the heat from the fire, the crane operator was forced to crawl out on the boom of the crane, which was about 100 metres in the air. A military helicopter rescued him.

Shortly after the incident, a Ministry of Labour inspector contacted the company owner to request crane records.  The owner provided some but not all of the information. The MOL inspector attempted to interview the owner but was unable to reach him by telephone or at his residence.

The Ontario Occupational Health and Safety Act provides, in section 62, that no person shall hinder or obstruct an inspector; every person shall co-operate in respect of an inspector’s investigation; and no person shall provide false information to an inspector or refuse to provide information required by an inspector.

The company owner was charged with and convicted of the Occupational Health and Safety Act offences of (1) knowingly furnishing an inspector with false information or neglecting or refusing to furnish information required by an inspector, and (2) failing to furnish all necessary means in the person’s power to facilitate any entry, search, inspection, investigation, examination, testing or inquiry by an inspector. He was personally fined $19,000.00.  His company was also found guilty of failing to comply with a requirement of an inspector, and was fined $8,000.00.

This case illustrates the broad powers of Ministry of Labour inspectors and the consequences of interfering with an inspector’s investigation.

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

Company owner convicted, fined under OHSA for failing to co-operate with MOL inspector

“Classic bullying” in company washroom, “which is the traditional hang out of bullies”, lands employee three-day suspension

A 6’2′, 300-lb employee’s hostile, intimidating comment to a smaller co-worker in the company washroom was just cause for a three-day suspension, an arbitrator has decided.

The evidence was that the suspended employee said, “I am your worst nightmare” to the co-worker as he stood over him in a threatening way.  The co-worker was 5’8″ tall and did not have the use of his left arm.

Although the union argued that the comment was said “in a joking manner”, the arbitrator disagreed. She held that the line, “I am your worst nightmare” meant “I am someone you should be afraid of”.  It was “classic bullying” which took place in the washroom “which is the traditional hang out of bullies”.  The arbitrator found that the employee had perceived that his co-worker was anxious and tried to intimidate him.

The arbitrator stated:

“The grievor’s comment was not specifically a threat of physical harm but it was a violation of the company’s Workplace Violence Policy because it was inappropriate behaviour that could insinuate violence and because it was hostile language that would be intimidating to a reasonable person. The conduct was just cause for some discipline. It was not a first offence because the grievor received a one day suspension a few months before for making a threatening comment. The three day suspension he received was, therefore, in accordance with the principles of progressive discipline.”

The decision is part of a growing line of post-Bill 168 cases in which arbitrators have shown decreasing tolerance for workplace violence and harassment.  Even one threatening comment can result in discipline.

Workers United Canada Council v Winners Merchants International, 2015 CanLII 21612 (ON LA)

“Classic bullying” in company washroom, “which is the traditional hang out of bullies”, lands employee three-day suspension

Even “inspecting” equipment is “working on it”: employer guilty of OHSA charge where employees had not even started maintenance work

A maintenance electrician had “worked on” a stuck shipping door when he simply “inspected” it, even though he had not actually performed maintenance on it, a court has ruled.  He was injured when the door fell on him.  The employer was found guilty of failing to ensure that the door was “blocked” before employees worked on it.

The maintenance employee testified that he “took a look at the controller [for the door] just to make sure, looked in to make sure that the P-L-C was powered up”.  He agreed that he was “merely inspecting, trying to determine what the problem was.”

The trial justice found that “some level of work” took place, and therefore that the employer was guilty of the offence of failing to ensure that the shipping door was blocked before it was “adjusted, repaired, or [had] work performed on it”, contrary to the Industrial Establishments regulation under the Occupational Health and Safety Act. 

The appeal judge agreed and upheld the conviction.  He stated that the OHSA did not require that a “minimum or threshold amount of work be performed” before the requirements of the OHSA are triggered.  The maintenance employee’s checks of the electrical system for the door amounted to “some work” and therefore the obligation to “block” the door had been triggered.

Ontario (Ministry of Labour) v. Maple Lodge Farms, 2015 ONCJ 172 (CanLII)

 

Even “inspecting” equipment is “working on it”: employer guilty of OHSA charge where employees had not even started maintenance work

36-year employee properly dismissed for “unprovoked momentary outburst” with knife

A 57 year old employee with 36 years of service was properly fired for one incident in which he cut another employee with a knife, a labour arbitrator has decided.

The employee was a custodian with a textiles company.  He carried two “utility/box” cutting knives, which had short retractable blades.  While eating lunch one day, he became annoyed when a co-worker banged on the lid of his Tupperware container, causing several loud noises.  The employee produced two utility knives and said to the co-worker, “Would you like the curved blade or the straight blade?”  The employee began to swing one utility knife towards the co-worker’s legs, and then above the table towards his chest.  The co-worker reached out to grab the employee’s arm and, in his attempt to protect himself, received a shallow cut to his forearm, which started to bleed.  About an hour later, while the co-worker was leaving the workplace, the employee said, “You are lucky that I didn’t stab you in the heart.”

The employer fired the employee.  The union grieved the firing.  The employee was also charged with and pleaded guilty to the criminal offences of assault with a weapon and uttering a threat.

At arbitration, the arbitrator upheld the dismissal. He found that there was no justification for the employee’s outburst.  Rather, “it was simply an irrational act of anger”.  Although the employee had obtained counselling and anger management training his “unexplainable act” still made it questionable as to whether he would do something similar in future.  Also, the harm to the co-worker could have been grave.  Rather than apologizing to the co-worker, the employee commented that “You are lucky that I didn’t stab you in the heart.”  Further, the judge in the employee’s criminal case ordered that he have no contact with his injured co-worker, which made it very difficult for the employee to return to work.

As a result, the arbitrator was not satisfied that the fact that the employee received counselling and anger management training provided sufficient confidence that he would not engage in similar misconduct if he returned to work.  The fact that the employee’s misconduct was an “unprovoked momentary outburst” was “more of a concern than a consolation”.  Even though the grievor was 57 years  old and had 36 years of service, the discharge was appropriate.  This decision shows arbitrators’ increasing willingness to uphold employers’ decisions to terminate for workplace violence.

Firestone Textiles Company v United Food and Commercial Workers Canada, Local 175, 2014 CanLII 76772 (ON LA)

36-year employee properly dismissed for “unprovoked momentary outburst” with knife

Company that “met or exceeded many industry standards in its operations” still found guilty of OHSA charges

Exceeding industry standards does not, on its own, protect employers from health and safety convictions or fines, a recent court decision shows.

A roofing company was charged with two offences under the Ontario Occupational Health and Safety Act. The charges alleged a failure to ensure that roofing workers were adequately protected by a guardrail system that met the requirements of the Construction Projects regulation under the OHSA.  A worker fell off a roof after he had removed both the middle and upper parts of a guardrail system to dump garbage, without tying-off. His sleeve caught on a motorized buggy he was using to transport waste on the roof; both he and the buggy went over the edge.

The court found that the guardrail system was routinely opened up by removing the middle rail and possibly also the top rail.  The original wooden middle rail had been replaced with an iron bar that was not securely fastened, at the time of the accident, to the guardrail system.  The presence of the removable iron bar violated the regulation.  Also, there was no clear process in place for the garbage disposal at the time of the accident.

The court noted that the company had “generally met or exceeded many industry standards in its operations”, and had clear internal policies, weekly production meetings to discuss safety topics, and “Toolbox Talks”.  It also hired outside consultants to teach various health and safety courses and to perform spot audits of safety.  There was evidence that workers who failed to use safety equipment were sent home without pay and given retraining.  The company had even fired long-term employees who repeatedly violated safety rules.

However, none of that was enough to establish the “due diligence” defence, because the company had not taken “all reasonable steps to prevent this accident”.

This case shows that an excellent safety program may not be enough to defeat OHSA charges if the employer failed to properly address even one particular hazard.

Ontario (Ministry of Labour) v. Semple Gooder Roofing Corporation, 2015 ONCJ 183 (CanLII)

Company that “met or exceeded many industry standards in its operations” still found guilty of OHSA charges

Manager was not a “competent person” to conduct harassment / violence investigation under Canada Labour Code: Court

The Federal Court has held that a manager was not a “competent person” to conduct a workplace harassment investigation under the Canada Labour Code because the employee who filed the complaint had not agreed that the manager was an “impartial party”.

In December 2011, an employee of the Canadian Food Inspection Agency filed a written complaint alleging “miscommunication, favouritism, humiliation, unfair treatment and a lack of respect” on the part of his supervisor.

The CFIA assigned a manager to undertake a “fact-finding” review of the concerns raised in the complaint.  The manager conducted internal investigations and concluded that there were communication issues and unresolved tension, but no evidence of harassment.

The employee contacted a federal Health and Safety Officer, alleging that the manager was not sufficiently impartial to conduct an investigation. The HSO issued a Direction requiring the CFIA to appoint an impartial person to investigate the complaint pursuant to the Canada Labour Code.  The CFIA appealed that direction to an Appeals Officer of the Occupational Health and Safety Tribunal of Canada (who sided with the CFIA), and the employee then appealed to the Federal Court.

The court noted that section 20.9 of Part XX to the Canada Occupational Health and Safety Regulations under the Canada Labour Code sets out procedural obligations of an employer if it receives a complaint of “workplace violence”.  The court held that “harassment may constitute workplace violence, depending on the circumstances”.  The court stated that the alleged harassment in this case could constitute “workplace violence” if after a proper investigation by a competent person it is determined that the harassment could reasonably be expected to cause harm or illness to the employee.  (Workplace Violence is defined in that Regulation as, “any action, conduct, threat or gesture of a person towards an employee in their work place that can reasonably be expected to cause harm, injury or illness to that employee.”

The court noted that under the workplace violence provisions of the Regulation, a person is a “competent person” to conduct a workplace violence investigation if he or she is “impartial and is seen by the parties to be impartial” and has the necessary knowledge, training and experience.

In this case, the employee who filed the complaint did not agree that the manager was impartial.  The court stated:

“What the employer did here was have the Regional Director, Mr. Schmidt, not only institute a pre-screening and fact finding exercise to determine the nature of the complaint and attempt to facilitate mediation, but also conduct a full investigation of the complaint, acting as a competent person under section 20.9(3). In his report, Mr. Schmidt mentions ‘investigation’ eight times and refers to his review of the evidence before him. He was not competent to do so, given there was no agreement that he was an impartial party by the employee and therefore had no authority to conduct any investigation, once the allegation of work place violence was unresolved at the pre-screening stage and still a live issue between the parties.”

As such, the manager’s investigation was essentially unusable, and the court referred the matter back to the Appeals Officer for re-determination of the issues in accordance with the court’s decision.

This decision shows the importance of employers – at least federally-regulated employers who are subject to the Canada Labour Code – of strictly complying with the workplace violence and harassment procedures set out in legislation or regulations.

Public Service Alliance of Canada v. Canada (Attorney General), 2014 FC 1066 (CanLII)

Manager was not a “competent person” to conduct harassment / violence investigation under Canada Labour Code: Court

Aggravated damages awarded under OHSA for retaliatory firing

An employer has been ordered to pay aggravated damages – in addition to lost wages – after firing an employee in retaliation for raising safety issues.

The employee worked at a hair salon. She suffered an injury at work as a result of unsafe working conditions.  The employer did not take any steps to address the safety issues, nor did it report the injury to the Workplace Safety and Insurance Board.

After the employee filed a complaint with the Ministry of Labour, the employer dismissed her. She then filed a safety-reprisal complaint with the Ontario Labour Relations Board. The employer did not attend the hearing at the OLRB.

The OLRB found that she was dismissed in retaliation for raising safety concerns. It awarded her lost wages.  Interestingly, the OLRB also awarded her aggravated damages for mental distress, stating that such damages are appropriate where the employer violates a “statutory prohibition”.

The OLRB stated:

“Here the evidence is clear that the circumstances of the Complainant’s dismissal were insensitive, demeaning and humiliating. Mr. Vasiliades callously disregarded her workplace injury, failing to report it to the Workplace Safety and Insurance Board and pressured her to continue working despite her protestations of the seriousness of her injury. The Complainant was summarily dismissed while on sick leave solely for acting in accordance with the statutory mandate when she reported the hazardous working condition and her injury to the Ministry; she was threatened with arrest were she to set foot on the premises of Pro-Hairlines; she was denied her final paycheque; she was denied the opportunity to collect EI by the Employer’s bogus claim that she was self-employed and its refusal, in total disregard of federal legislation, to issue an ROE to which she was entitled. The Complainant was no longer self-sufficient as a direct result of the Employer’s conduct and suffered loss of self-esteem as she was forced to rely on her father for the basic necessities of food and shelter. Such economic dependence was humiliating for the Complainant.  The psychological and mental distress she suffered was compounded by the lingering physical effects of the serious electrical shock she had sustained due to the hazardous conditions at the workplace for which the Employer was responsible. The Complainant’s sense of loss of dignity and self-respect can be laid directly at the feet of the Employer, acting through Mr. Vasiliades who throughout the dismissal process acted in a manner that was unfair and in bad faith, being both untruthful, misleading and unduly insensitive.”

The OLRB ordered the employer to pay the employee $16,659.00 as damages for lost wages, and $7,500.00 as aggravated damages, for a total of $24,159.00.

Brenda Bastien v 817775 Ontario Limited (Pro-Hairlines), 2014 CanLII 65582 (ON LRB).

Aggravated damages awarded under OHSA for retaliatory firing

OHSA does not protect against retaliation for merely sustaining injury: OLRB

The Occupational Health and Safety Act may protect employees against retaliation for asserting their rights under that Act, but not for merely sustaining an injury, the Ontario Labour Relations Board has decided.

An employee filed a complaint under section 50 of the OHSA. She asserted that by not giving her the job of Manager of Corporate Learning, the employer retaliated against her because she sustained an injury, and that that retaliation violated the OHSA.

The OLRB stated that even if it were true that the employer retaliated against her for sustaining a workplace injury, “sustaining an injury is not an assertion of a right under the Occupational Health and Safety Act, and hence there is no basis for a reprisal complaint.

Section 50 of the OHSA provides that an employer must not dismiss, discipline, penalize or intimidate or coerce a worker “because the worker has acted in compliance with this Act or the regulations or an order made thereunder, has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act.”

None of those circumstances were present in this case.  As such, the OLRB dismissed the retaliation complaint.

Krupp v UNIFOR, Local 229, 2015 CanLII 2111 (ON LRB)

 

OHSA does not protect against retaliation for merely sustaining injury: OLRB