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Posts tagged: OHSA

Workplace Investigations under the Occupational Health and Safety Act

By , December 11, 2018 10:17 am

The Occupational Health and Safety Act (OHSA) imposes several obligations on employers to investigate complaints of workplace harassment.  

When there is an incident or complaint of workplace harassment, OHSA requires the employer to conduct an investigation that is appropriate in the circumstances. An employer has a legal obligation to make the workplace safe so if there is any indication of behaviour that would make the workplace unsafe, the employer must address it. The investigation must be conducted by someone who has received information and instructions on how to conduct an investigation.

The OHSA requires that complaints of workplace violence or harassment, whether formal or informal, must be investigated. To reduce legal exposure and save costs, employers should ensure that at least one employee receives workplace investigation training.

When should an employer conduct an investigation?

Workplace harassment occurs when a person engages in a course of vexatious comment or conduct against a worker in a workplace which is known or ought reasonably to be known to be unwelcome. The definition of workplace harassment also includes sexual harassment.

Examples of workplace harassment include spreading malicious rumours or gossip, excluding or isolating someone socially, physically abusing or threatening abuse, making offensive comments or jokes, yelling or using profanity, constantly criticising a person, belittling a person’s opinions or displaying or circulating offensive pictures or materials.

Two of the most common examples of workplace harassment are bullying and sexual harassment.

Example 1: Bullying

A group of employees deliberately spread malicious rumours about a colleague’s personal life and make belittling comments about her physical disability. The employee does not file a formal complaint but her supervisor witnesses her colleagues engaging in this conduct.

Example 2: Sexual Harassment

An employee is subject to repeated jokes and comments about his sexual orientation. He files a complaint with his human resources representative.

What are an employer’s obligations in these circumstances?

Under OHSA, the duty to investigate will be triggered by “incidents” of workplace harassment, even if there is no formal complaint. The Code of Practice produced by the Ministry of Labour suggests that the obligation arises whenever a supervisor becomes aware of an incident, even if the supervisor fails to pass that information on to the employer.  When the employer becomes aware of an incident of harassment, a trained investigator must complete an investigation and provide the employer with a written report of the results of the investigation.

Consequences of a failure to investigate?

Failure to investigate or appointing an untrained investigator could result in the Ministry of Labour ordering the employer to hire an external investigator at the employer’s expense. External investigators are typically very costly. Further, despite their high fees, there is currently a shortage of workplace investigators.

Failing to conduct a proper internal investigation could not only have consequences under OHSA, but could also lead to costly consequences at both the Human Rights Tribunal of Ontario and the Courts.

If an employer does not have an internal investigation procedure then an employee is much more likely to file a complaint with the Ontario Human Rights Tribunal where an employer can be ordered to pay damages for failing to conduct an adequate investigation. Courts have also ordered employers to pay punitive damages for conducting faulty investigations.

Workplace investigations training

On Thursday February 14, 2019 we will be hosting a Workplace Investigation Training Session. This session will be moderated by  Monica Jeffrey of JMJ Workplace Investigation Law LLP. The cost is $399 plus H.S.T. for the day. Registration is limited. If you are interested in attending please contact us at 647) 204-8107 or at [email protected]

What does “failing to take every precaution reasonable in the circumstances for the protection of a worker” mean?

By , January 19, 2018 10:03 am

When the Ministry of Labour lays charges under the Occupational Health and Safety Act (“OHSA”) after a workplace injury it often includes a charge under section 25(2)(h) of OHSA which states that an employer is required to “take every precaution reasonable in the circumstances for the protection of a worker”.

A recent case, Ontario (Labour) v. Quinton Steel (Wellington) Limited, 2017 ONCA 1006 interpreted this rather broad statutory obligation.

The Facts

Martin Vryenhoek died when he fell from a temporary welding platform. The platform was 6 feet and 6 inches tall, did not have guardrails, and no fall arrest equipment was utilized. The employer was charged under the OHSA for, among other things, “failing to take every precaution reasonable in the circumstances for the protection of a worker”. Under the applicable regulation, the installation of guardrails was not specifically required, and the worker was not specifically required to wear fall protection equipment because he was working at a height of less than three metres.

The Trial Decision

The trial justice acquitted the employer, concluding that the applicable regulation was a “complete and discrete code with respect to the requirements for protecting workers from falls in a case such as this.”

The Court of Appeal Decision

The Court of Appeal disagreed with the trial judge and stated that an employer’s duty under section 25(2)(h) to take every precaution reasonable in the circumstances does not depend on the existence of a specific regulation prescribing or proscribing particular conduct. Instead, this Court found an employer’s duty under 25(2)(h) is broader than what is contained in the prescribed regulations. The Court also concluded the trial judge failed to ask whether the installation of guardrails was a reasonable precaution necessary in the circumstances of the case. A new trial has been ordered.

Lessons to be Learned

  • An employer can comply with all of its obligations under the regulations under OHSA and be convicted.
  • The duty to take every precaution reasonable in the circumstances for the protection of a worker is broader than the specific obligations that are set out in OHSA and the accompanying regulations.
  • To be in a position to show it took every precaution reasonable in the circumstances an employer should implement a health & safety program which, among other things, identifies workplace hazards and potentially unsafe situations and implements training and instruction in relation to these hazards and unsafe situations. This can include daily toolbox meetings in some circumstances. For other measures that an employer can introduce, click here.

For over 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

OHSA in Wonderland: Through the Looking Glass

By , May 15, 2017 9:20 am

Section 50 of the Ontario Occupational Health & Safety Act (“ OHSA ”) prohibits an employer from disciplining an employee who has sought enforcement of this law.

Guilty until Proven Innocent

If an employee alleges a violation of section 50 of OHSA then the employer must prove there has been no violation. This is called a reverse onus clause which means an employer must prove it did not violate OHSA.

After a brief summary of the remedies that are available to employees under section 50 of OHSA, this blog discusses three recent cases.

Remedies

  1. Reinstatement for Non-Union Employees

If an employer cannot prove that it did not violate section 50 then the presumptive remedy is the employee’s reinstatement. Normally non-union employees do not have a right to reinstatement.

  1. Douple Dipping: Damages for Lost Wages & Damages for Loss of Employment

If the employee does not want to be reinstated then an employee can be awarded (i) lost wages that can far exceed wrongful dismissal damages, and (ii) damages for lost of employment. Some people do not understand why an employer can be ordered to pay an employee damages for lost wages and separate damages for the loss of employment.

  1. Aggravated damages

Even though OHSA does not state that the Ontario labour Relations Board (the “OLRB”) has the power to award aggravated damages the OLRB has ordered this kind of damages in at least two cases.

Three Cases

In a 2014 decision, an employer was ordered to pay an employee with 3.5 years’ service: (i) 21 weeks pay for lost wages which was the time between the termination and the date of the hearing plus an additional 6 weeks pay and (iii) $ 7500 in aggravated damages. The employee in this case was terminated after the employer learned she had filed a health and safety complaint with the Ministry of Labour (“MOL”) in connection with a workplace accident where she was injured.

In a 2015 decision, an employer was ordered to pay an employee with 19 weeks’ service (i) 31 weeks pay for lost wages (less part-time income earned during this period); (ii) 6 weeks pay for the loss of employment; and (iii) special damages for job search costs. The employee in this case was terminated after the employer learned that the employee asked the MOL about the non-existent workplace health and safety committees at the workplace.

In a 2017 decision, an employer was ordered to pay an employee (i) 33 weeks’ pay for lost wages and (ii) $5000 as compensation for the harm inflicted on her by the employer’s flagrant breach of her statutory rights. The employee in this case was terminated shortly after complaining that a co-worker had threatened her.

Lessons to Be Learned

  1. An employee has the right to file a complaint with the Ministry of Labour claiming he or she has been terminated for raising a health or safety concern including a workplace harassment complaint. The employer must prove the employee’s decision to seek enforcement of OHSA had nothing to do with the termination; otherwise, the presumptive remedy is reinstatement.
  2. There is no cost to file a complaint and the employee need not hire a lawyer. If the complaint is not successful then the employee will not be ordered to pay any of the employer’s costs. The legal cost to defend such a complaint can easily amount to several thousand dollars.
  3. If the complaint is successful then the employee can be awarded significant damages; in some cases, significantly more than wrongful dismissal damages.
  4. An employer should take all health and safety complaints seriously including workplace harassment complaints and other alleged violations of OHSA and investigate them promptly.
  5. An employer terminates an employee for calling the Ministry of Labour about OHSA violations at its extreme peril.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Employer Alert: What to Do When the Ministry of Labour (MOL) Comes Calling

By , April 18, 2017 11:25 am

We often get calls from employers who are the subject of a Ministry of Labour (“MOL”) Inspection.

Sometimes the employer is a target of one of the MOL’s pro-active enforcement blitzes. For information on the MOL’s 2017-2018 blitzes, click here.

And sometimes an employee has called the MOL and lodged a complaint and an investigator has been assigned to investigate the complaint.

Why Are The Number of MOL Orders Increasing?

Several new obligations have been imposed on employers in the last couple of years and in our experience the MOL inspectors usually confirm whether or not an employer is in compliance with these new obligations regardless of the reason for the visit to the workplace. For information on some of these new obligations click here, here, and here.

The Results of a Recent MOL Investigation

This blog discusses a group of orders that a MOL inspector recently imposed on a small employer after an employee complained that she had been harassed at work.

Ironically, even though the employer had complied with the law that was the subject matter of the complaint, the MOL issued several orders against the employer for infractions of the Ontario Health and Safety Act (“OHSA”) including the following:

  1. The employer had not posted a copy of OHSA with the applicable regulation in the workplace
  2. The employer did not have a health & safety representative selected by the workers
  3. A health & safety representative had not inspected the physical condition of the workplace
  4. The employer did not provide basic occupation health & safety training to employees
  5. The employer did not have a health & safety policy posted in the workplace
  6. The employer did not have a workplace violence policy posted in the workplace
  7. The employer did not have a workplace harassment policy posted in the workplace
  8. The employer did not institute best practices for simple but dangerous activities

I suspect that a MOL inspector would issue these orders against many (if not most) Ontario small employers because most small employers are not aware of these obligations.

Penalties a MOL Inspector Can Impose

A MOL inspector has broad powers. If the employer co-operates with the inspector and the violations are minor then the inspector may simply issue an order with a deadline for compliance.

For uncooperative employers, repeat offenders, or serious violations of OHSA, the inspector can issue a ticket with a fine of approximately $ 295, or charge the employer with offences under Part I (maximum fine of $ 1000 per offence) or III (maximum fine of $ 500 000 for third offence) of the Provincial Offences Act. For more information on a MOL inspector’s powers, click here.

Lessons To Be Learned

You should try to stay up to date on changes to Ontario’s employment laws. We distribute this blog every two weeks as a public service to give you an idea of some of the changes in Ontario’s employment laws. We do not blog about all of these changes.

To help employers comply with Ontario’s employment laws we offer a fixed price compliance service that is tailored to your organization’s specific needs.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

 

 

 

Why Employers Are Finding It Increasingly Difficult to Comply with Ontario’s Employment Laws

By , November 8, 2016 9:20 am

Lawyers as Forest Rangers

You can compare employment lawyers to forest rangers.

We prevent legal fires when we, for example, draft employment contracts & legally required policies, and when we provide prophylactic advice such as pre-termination advice.

We put out legal fires when we, for example, defend wrongful dismissal actions, human rights complaints, and claims for overtime pay under the Employment Standards Act.

Lawyers as Compliance Officers

In recent years with the proliferation of new workplace laws, employment lawyers have also taken on the role of compliance officers for some clients.

Unless a person is responsible for keeping an organization up to date on Ontario’s employment laws, an employer is simply not aware of new employment laws.

In the past, many employment laws were of the “Thou shall not…” variety.

Increasingly, however, the laws are of the “Thou shall do (something)…” variety which makes compliance impossible if the employer is unaware of a new law. As most people are aware, ignorance of the law is not a defence to a violation of a law.

New Employer Obligations

As readers of this blog are aware, the Ontario government regularly introduces new laws and amends existing employment laws. Here are a small number of recent new or changed laws:

  1. Mandatory Training

New employees must generally receive customer service training under the Accessibility for Ontarians with Disabilities Act (“AODA”), and mandatory health and safety training under the Occupational Health & Safety Act (“OHSA”).

  1. Mandatory Investigations

Employers are now required to investigate workplace harassment complaints (i.e. my co-worker is “bullying” me) and the person who investigates the complaint must be appropriately trained. If not, the Ministry of Labour can order the employer to retain an external investigator at the employer’s expense.

Although an investigation into a human rights complaint is not explicitly required under the Ontario Human Rights Code the failure to do so can result in an order to pay an employee damages for failure to investigate even if an adjudicator concludes no discrimination took place.

  1. Mandatory Requirements In Relation with Disabled Employees

As of January 1, 2016 eleven (11) new obligations were imposed on employers with 50 or more employees as a result of the Employment Regulation under AODA. These obligations were all of the “Though shall do (something)…” variety. One such obligation is to prepare an individual accommodation plan for any disabled employee who requests accommodation. This plan must address at least 8 prescribed issues. These new obligations are imposed on employers with 1 to 49 employees on January 1, 2017.

I will continue to bring new employment law developments to your attention through this blog. But sometimes this is not enough.

The MacLeod Law Firm’s Compliance Services

To help employers comply with new employment laws and to manage compliance risk, the MacLeod Law Firm is offering a number of fixed fee services.

One service is our HR/Employment Law Compliance service. After determining a client’s compliance needs, we prepare a schedule of monthly services. (i.e. Month 1 – Occupational Health & Safety Act compliance; Month 2 – Employment Standards Act compliance; Month 3 – Mandatory postings and training compliance etc.)

Another service is our AODA Compliance Report. We review each client’s current practices and provide a written report setting out exactly what the organization needs to do to comply with AODA’s new Employment Regulation.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

 

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