Fines and Reprisals in Occupational Health and Safety

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Although there are slight differences, all jurisdictions, whether provincial or federal, have Occupational Health and Safety (OHS) laws; all jurisdictions will have a prohibition against reprisal or retaliation toward any employee who enacts their rights under OHS legislations. Here is a brief refresher of the three main rights of workers under OHS regulations in Canada, which all HR practitioners should know:

  • The right to refuse unsafe work.
  • The right to participate in the safety program.
  • The right to know about the actual and potential hazards.

In Canada, not ensuring an employee has these three legal rights may not only lead to regulatory fines, but to backpay as well as punitive damages.

There was a recent case where an employee raised concerns about various health and safety violations in his workplace, and was fired because of his H&S complaints. After an investigation and a hearing, the Ontario Ministry of Labour agreed with the terminated employee and the tribunal awarded him backpay of $25,000, $4,500 in other awards, and $2500 in punitive damages. Click here to read in greater detail about the case.

There are several very interesting possible legal precedents about this case. Normally the penalty for terminating an employee, when there is a violation of a reprisal clause, is reinstatement. In this case, however, they awarded the former employee backpay. Additionally, the board believed the employer’s actions were not appropriate and they awarded punitive damages on top of the award.

These two awards may end up setting the bar for future cases, when the employer who violates a worker’s OHS rights may have to correct or redress the harm that was caused, in addition to having to pay additional damages depending on how they treated their employee. It will be interesting to see if this is a one-off case or ends up setting a new trend.

Discussion Questions:

  1. Identify the reprisal section of the OHS Act in your jurisdiction. Summarize the fines and/or penalties that are outlined in the section if an individual violates the laws. Create a 5-minute presentation to educate supervisors on the details of that reprisal section.
  2. Review the fines and penalty section of the OHS Act in your jurisdiction and compare it to the one in the next closest jurisdiction. Identify the similarities and differences.

When is Enough, Enough?

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What is an acceptable number of workplace fatalities? Is there ever an acceptable number of workplace fatalities? Most of us would say no, but do we even know what the current fatality statistics are in Canada? Again, most of us would say no.

For the last 10 years in Canada, an average of 1000 workers a year have been killed in the workplace. The most current data we have is from the Associations of Workers’ Compensation Board of Canada (AWCBC), which revealed 951 workers died on the job in 2017.

Recently, it was also reported that the US saw the highest number of workplace deaths since 2008, which was recorded at 5250 deaths in 2018. Doing some simple analysis, 5000 workplace deaths is a larger number than 1000, but does this lead to the conclusion that it is more unsafe for workers in the US than in Canada?

When we compare workplace fatalities between Canada and the US, we can agree on the following numbers:

  • Canada: 951 deaths in 2017
  • US: 5250 deaths in 2018

Discounting the issue of different reporting years, it does not take a scientist to realize that something is not right.

Canada’s workplace fatalities rate is much higher, because Canada has a much smaller population of approximately 35 million people compared to the US’s approximate population of 327 million. For the ease of math, one could argue that the US’s population is 10 times that of Canada’s. Therefore, if Canada had 10 times the population than it does currently, our workplace fatalities would be at approximately 9510 a year.

What this means is, on a roughly per capita basis, workers in Canada are dying at twice the rate, compared to workers in the US.

This is not acceptable. When is enough, enough?

Canadian employers and provincial and federal governments must take note of this alarming statistic and develop a national campaign to combat this terrible workplace reality, with the ultimate goal of eliminating workplace fatalities.

Every worker has the right to come home every night.

Discussion Question:

What can an HR department do to increase awareness about workplace fatalities in Canada? Develop an awareness campaign that could be implemented at a large manufacturing company that has plants all over Canada.

Should Fiera Food Still be in Business?

When should a company lose its right to exist? 

When it runs out of money? When it damages the environment? How about when it murders 5 of its workers? Yes, you read that correctly. In a period of 20 years, 5 temporary workers were killed in workplace accidents, which could have been prevented, at Fiera Foods. It was a blatant lack of adequate training of these temporary workers that caused their deaths.

All 5 of these deaths were horrible workplace murders:

  • In 1999, a 17-year-old worker was crushed by a bread-making machine
  • In 2011, a worker got crushed by machinery while on the job
  • In 2016, a 23-year-old refugee worker was strangled after her head scarf got caught in equipment
  • In 2018, another worker got crushed by machinery while working
  • The details of the latest fatality have not been released yet, but it sounded like the worker was also crushed by machinery

Click here to watch a CityNews report detailing these workplace fatalities.

It seems like Fiera Foods is not being held accountable for its workplace safety records, even though the company should be shut down by the Ministry of Labour, Training and Skills Development of Ontario (MOL), until it can prove it has all the elements of a safety program in place to ensure the health and safety of all of its workers. The law is very clear on this matter: 25(2)(h) of the OHSA states that the employer is required to “take every precaution reasonable in the circumstances for the protection of a worker.”

It is obvious if you are killing workers at your plant, you are not taking every precaution reasonable.

Does this mean the OHSA laws in Ontario are inadequate? No, but the political and social will is. We can all do better—the government, the MOL, and society at large, which should not accept that 5 souls have left this earth because business is worth more than workers’ safety.

Discussion Questions:

1. Research Bill C-45, also known as the Westray Bill. Prepare a summary of Bill C-45, its purpose, and its penalties. Reflect on the Fiera Foods case, and assess if they should be charged under this legislation.

2. Research how the use of temporary agencies has contributed to workplace deaths. Review the following CBC video link. Imagine your VP of HR has asked you to investigate the benefits and detriments of using temporary agencies to fill your labour gap. What would you tell them about both?

Is Subway Air Subpar?

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According to a recently published report, the level of pollution to which workers are exposed in Toronto’s subway system (known as the TTC), is within acceptable occupational limits.  This finding comes from an extensive air quality study done by the TTC. The need for the study was prompted by a Health Canada report that ‘suggested that the particulate matter in Toronto’s system was 2.5 times higher than systems in Montreal and Vancouver’.

Click here to read about the pollutant findings in the TTC’s underground subway system.

While the results of the findings confirm that additional protective measures are not required for non-maintenance workers employed by the TTC, the fact remains that the air quality in the underground workplace does contain particulate matter. This is the combination of organic and inorganic materials such as dust, pollen, gasses and air-borne toxins that exist in varying levels in air, all the time. It is the level(s) within this combination that can become problematic and potentially dangerous within the workplace environment.

Given the results of the air quality study by the TTC, it seems reasonable that no additional interventions, such as Personal Protective Equipment (PPE) in the form of masks, are required to be provided by the employer to all employees. As noted in the report, there are designated workers within the TTC who do work in areas with high levels of pollutants and are part of its ‘respiratory regulation program’. This implies that the employer is already providing PPE, equipment and support for those working within unacceptable air quality levels.

However, individual reactions to levels of pollutants and other air quality contaminants vary. According to an information posting by the Canadian Centre for Occupational Health and Safety (CCOHS), ’not all people are affected with the same symptoms or to the same extent’ in response to poor air quality issues.

Click here to read the general air quality fact sheet posted by CCOHS.

If individual reactions to air quality issues vary, how can the employer provide a safe workplace for all employees, without allowing for or providing protections on an individualized basis? This may be a question that remains unanswered and may be cause for more safety uncertainty.

While the findings of the report may provide comfort for some breathing in the underground air of the TTC, it is unlikely that it provides respite for all.

Discussion Questions:

  1. How does poor air quality impact workers and workplaces?
  2. What types of protections can the TTC provide to its employees that go beyond ‘accepted’ occupational exposure limits?
  3. Do you agree or disagree with the union’s position that all subway employees should be allowed to wear respiratory masks? Explain your rationale.

Pressure and Support For Youth Safety

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From our Occupational Health and Safety studies, we have learned that the Internal Responsibility System (IRS) is integral to ensuring that every day our colleagues and co-workers come to work with an expectation of safety and that every day they leave work with that expectation fulfilled. Under the IRS each of us has a personal responsibility to ensure that other individuals in the workplace are both working safely and promoting safe work practices. These other individuals include new workers, young workers, and summer student workers. The provision of safety support alone, however, is not enough to keep our young co-workers safe. The supportive responsibilities go hand in hand with pressure from government intervention to make sure safe work practices for youth are implemented and reinforced.

Every year, provincial programs focus on ensuring that employers are providing safe workplaces for new and young worker during the summer months. This summer time ‘safety blitz’ includes the pressure of inspections by government representatives, who have the authority to fine and impose safety-related orders when employers are found to be non-compliant with safe work practices.

Click here to read about the summer safety blitz announced in London, Ontario.

Along with this type of pressure, supportive education programs targeting schools with young workers, continue beyond the summer months.

Click here to read about more about youth safety and watch a news clip about Youth Safety Education Day in Saskatchewan.

The need for both pressure and support comes from the unfortunate reality of young worker injury and fatality rates. As noted in the interview promoting Youth Safety Education Day in Saskatchewan, 50% of young workers are injured on the job within the first six months of work and worse, there is an average of three fatalities per year for youth on the job in the same province. Given that Ontario’s prior year summer safety blitz resulted in ‘7,675 orders and requirements under the Occupational Health and Safety Act,’ it is clear that the need for safety at work for young workers is a cross-provincial concern.

More importantly, under the IRS program and especially for young workers, it is clear that the need for both pressure and support for safety at work is everyone’s concern.

Discussion Questions:

  1. How do businesses benefit from promoting programs like Youth Safety Days?
  2. What are the injury and fatality rates for young workers in your province?
  3. What programs are in place to prevent and reduce harm to this targeted group of workers?
  4. What types of Health and Safety protocols do you advise an employer to put into place to ensure that summer students and young workers stay safe at work?
  5. What do you do to promote safe work practices at work?