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:
- 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.
- 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.