OH&S Fines

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.

Crime & Punishment

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Every day we make choices; big choices and little choices, all of which are within our scope of control.

It’s the same with health and safety in the workplace. Working safely is a choice-based trajectory that individual workers follow on a daily basis. There are also rules, guidelines, structures, and requirements that help workers make the ‘right’ choice — which is to work safely.

However, no matter how much support is put in place, from time to time individual workers make the ‘wrong’ choice. It may be intentional or unintentional, but workers who make the choice to take a risk, choose to work unsafely. This choice all too often results in harm to themselves or to others in the workplace, sometimes with devastating consequences.

Besides the actual physical harm that can follow from unsafe work practices, other consequences include punishments imposed by provincially legislated health and safety sentencing systems. The judicial approaches to work-related health and safety violations have followed the traditional wisdom that penalties paid either with time (jail) or with money (fines) are sufficient to deter future violations and to compensate for harm caused.

But is the threat of punishment through these traditional methods enough to encourage individuals to make the decision to work safely? The province of Nova Scotia has decided it is not. In addition to the existing consequences, the province has introduced alternative sentencing options that focus on changing an individual’s behavior through “creative sentencing”.

Click here to read about Nova Scotia’s alternative approach.

Learning from those who have had to live with the consequences of their poor safety decisions is a powerful motivator. Let’s hope that these sessions lead to better choices, better decisions, and better safety practices for all.

 

Discussion Questions:

  1. From your reading of this article, how do the creative sentencing alternatives impact the workplace?
  2. If you were the Health and Safety representative in your current organization, how could you change safety training sessions to incorporate some of the techniques identified in this article?
  3. If you had to choose between paying a fine and presenting a ‘lessons learned’ training session to others because your actions caused harm to someone in the workplace, which one would you choose? Explain your rationale.

 

Dangerous Work

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A bag of money and gavel represent many legal expenses.
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Some workplaces are inherently dangerous. Often we think of these dangers arising from physical or environmental agents that could cause harm to the worker on a day-to-day basis. The human element is also a very real source for contributing to a dangerous workplace, especially in organizations that serve vulnerable and disenfranchised members of our society.

Ontario’s Waypoint Centre for Mental Health Care is a facility that treats patients with severe and complex mental health issues and disorders. In the spring of 2016, a patient at the center was able to access two screwdrivers and stabbed several workers, causing them serious injury.

Almost a year later, the Ministry of Labour has laid three charges against the Centre under the Occupational Health and Safety Act. These charges include the employer’s failure to take every reasonable precaution to protect workers; failure to ensure that measures and protections were established for workers; and failure to have health and safety procedures in writing.

Click here to read an article about this case.

As noted in the article, if the employer is found guilty of, or pleads guilty to, these charges they may be faced with a fine of up to $500,000 and other potential penalties.

The Waypoint Centre has responded, as noted in the article and as posted on their website.

This case shows us that policies and procedures on their own do not make workplaces safe. It is clear that the employer must engage risks proactively, especially in a high-risk workplace where danger lies in human behaviour that may be volatile and unpredictable. The employer must act in order to ensure that all persons, both employees and patients alike, are able to have some assurance of living and working in a safe environment.

Discussion Questions:

  1. As the Health and Safety Manager in this situation, what steps would you take to ensure that workers feel safe?
  2. How could you promote a safe workplace in an inherently dangerous work environment?
  3. If you were the employer in this case, how would you plead and what would be the result?

Understanding the Impact of Poor Health and Safety

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Picture this: You are a manager of a medium-size manufacturing company. The company is big enough to be considered a significant employer but small enough for you to have personal connections with all employees and some of their families.

It is 4:30 pm which is almost quitting time for the afternoon shift. You have just been called out to the shipping and receiving area. It is chaos. A large shelving unit has collapsed and it is clear there is a worker trapped beneath it who will not survive. It is traumatic for everyone to watch.

Once the initial first medical response has been implemented the ministry of labour arrives on site to do an inspection of the accident. Everything else is in limbo and the night shift workers have been called to cancel their shift.

Here is where it gets really difficult.

As you walk back to your office you ask the HR department to get the employee’s home phone number. The employee’s file is given to you. Everything moves in slow motion, you can smell the dust coming off the file, you take the file and immediately feel a sharp stinging, you are not sure if it is your hand or your heart. It is like a message is being sent to you, this moment, this call, will change your life forever.

As the direct supervisor you have been given the task of making the call to inform the employee’s spouse that her husband will not be coming home tonight or ever again. You pick up the phone and dial the number. A small voice answers, it is the employee’s daughter who has just been picked up from kindergarten. You ask to speak to her mother.

You know that little girl’s life has been changed forever! She may never even remember the sound of her father’s voice, the touch of his hand. Your eyes well up as you take a deep breath. You have no idea what you are going to say next,

“Stephanie, there has been an accident ….,” nothing more has to be said.

Stephanie knows that the last time she saw her husband was over their morning coffee together, the ritual which they have had since they were married.

Click here to read about the Association of Workers’ Compensation Boards of Canada

Recently, Canadian Electrocoating Ltd. pleaded guilty to a violation of the Ontario Health and Safety Act and was fined $175,000. This fine in no way represents the true cost of an employee fatality at work. Emotions, sadness and despair: these are the true costs of a workplace fatality. Nothing will ever be the same to anyone who knew or worked with the employee who was killed in the workplace.

Click here to read an article about the fine

Every occupational health and safety act in Canada outlines the duties and responsibilities of employers, supervisors and workers. All of these acts are clear that the employer is responsible and must be diligent in ensuring worker safety. Unfortunately, all stake holders fail in their duties and responsibilities at least 1000 times per year in Canada, resulting in these tragic workplace fatalities.

If you are a planning on becoming a Human Resources, Health and Safety professional or a supervisor, you must ask yourself, do I know my duties and responsibilities?

Most importantly, you must ask yourself, what do I have to do to ensure a safe workplace so I never have to make that call?

Discussion Questions:

  1. You have been hired in a manufacturing company that has a poorly developed safety program. You have asked to meet with the stakeholders: management, supervisors and union members to discuss the current obstacles to health and safety improvements in the plant.
  2. What types of obstacles do you anticipate from each of the stakeholders?
  3. What kind of support do you need from each stakeholder in order to change the safety program?