Federal Court Rules on JHSC Participation in Safety Investigations

The purpose of incident investigations is to determine the root cause of the incident and identify corrective actions necessary to prevent it from happening again. The OHS laws of most jurisdictions require the JHSC (or safety representative) to participate in investigations. But what exactly is the JHSC’s role in an incident investigation? For example, must the whole JHSC participate or only certain members? A recent federal court case focused on the role of the JHSC in the investigation of a safety incident. Although the case involved federal OHS law, similar principles may apply in other parts of Canada.

THE CASE

What Happened: During an Air Canada flight from Shanghai to Vancouver, moderate turbulence caused injuries to four flight attendants. The flight was diverted to an airport in Japan so the injured attendants could get medical treatment. When the crew arrived in Canada, Air Canada management held a meeting on the incident. An employer and a worker representative from the JHSC were appointed to represent the JHSC in the investigation. Under federal OHS law (Sec. 135(7)(e) of the Canada Labour Code), the JHSC must “participate” in investigations of incidents relating to workers’ health and safety. The worker JHSC representative  complained that the employer representative was conducting most of the incident activities and claimed that the investigation had to be a joint effort between the employer and worker representative under the Code. But a Health and Safety Officer ruled that Air Canada just had to let JHSC members participate in the investigation. What the Court Decided: The Federal Court upheld the Officer’s ruling as reasonable. How the Court Justified the Decision: The duty to let the JHSC “participate” doesn’t necessarily mean that the entire JHSC must have a role in the investigation, according to the Court. It’s appropriate to designate a member(s) of the JHSC to act on its behalf during the investigation. As long as the designated JHSC member(s)—whether a workers or employers representative—actively take part in the investigation activities, the “participation” requirement is  met. Nothing in the law requires such an investigation to be a “joint” investigation by the JHSC and the employer or by both worker and employer JHSC representatives, noted the Court.  In this case, many of the activities done as part of the investigation were conducted or arranged by the employer JHSC representative. But the Court said there was evidence that the worker JHSC members also participated in investigation activities, including:

• The meeting after the incident;
• A review of reports from cabin crew members;
• The preparation of a list of questions to ask Flight Safety;
• A conference call with a Flight Safety Officer on its investigation;
• The verification of weather patterns for the flight and meetings with Flight Operations to discuss these patterns;
• The inspection of the aircraft;
• Interviews with flight attendants;
• A review of photographic evidence; and
• A review of all pertinent information and reports.

Thus, the Court concluded that it was reasonable for the Officer to find that Air Canada had allowed the JHSC to participate in the incident investigation as required by federal OHS law [CUPE v. Air Canada, [2010] FC 103 (CanLII), Jan. 29, 2010].

ANALYSIS

There are two lessons to be learned from the CUPE case. First, exercise common sense when it comes to the role the JHSC plays in an incident investigation. For example, most OHS laws simply require the JHSC to participate in incident investigations without specifying the committee’s exact role or degree of participation. (Note that Ontario’s OHS law requires the JHSC members who represent workers to designate one or more such members to investigate cases where a worker’s killed or critically injured at a workplace.) But even if the law doesn’t require both worker and employer JHSC members to participate, doing so makes sense. After all, worker and employer representatives bring different perspectives to the table, which can yield insights that would be missed if either perspective was omitted. In addition, workers will be more likely to accept the results of an investigation in which their representatives have taken part. Second, the JHSC should actively participate in the investigation of all safety incidents. In fact, most Canadian OHS laws require the JHSC’s participation. But maybe more importantly, given the JHSC’s role in the workplace with regard to workplace safety, it’s critical that it participates in such investigations. And that participation will likely result in better investigations.