2012 OHS Year in Review
|A roundup of important new legislation, regulations, court cases and board rulings that we covered in 2012 in the Safety Compliance Insider.
LAW OF THE YEAR
Psychological Health & Safety
In Nov. 2012, the Mental Health Commission of Canada, the CSA and the Bureau de normalisation du Québec released the final National Standard of Canada for Psychological Health and Safety in the Workplace.
OTHER NOTABLE REGULATORY CHANGES
In Dec. 2011, Canada’s Environment Minister announced the addition of 41 unique substances to the Environmental Emergency Regulations. Facilities that handle these substances at or above regulated quantities are must develop environmental emergency (E2) plans, if they’re not already in place.
CASE OF THE YEAR
Bank Should’ve Promptly Reported Manager’s Death from Heart Attack
A worker found a bank manager collapsed on the bathroom floor. He died, apparently of a heart attack. The bank didn’t initially report the fatality because the manager had died of natural causes but did report it seven days later. A federal safety officer cited the bank for failing to report a worker’s death within 24 hours. The OHS Tribunal upheld the citation, concluding that the bank manager’s death, which occurred in the workplace and while he was at work, triggered the reporting requirements under the Canada Labour Code. This ruling was consistent with the law’s intent and language, and permits safety officers to investigate all workplace deaths in a timely manner [Re Royal Bank of Canada,  OHSTC 5, Feb. 3, 2012].
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Provision of Fall Arrest System Didn’t Negate Need for Guardrail
A marine OHS inspector inspecting a Coast Guard vessel saw an elevated platform that had a fall arrest system but no guardrail. So he issued a violation for the lack of guardrail, which the employer appealed. The OHS Tribunal upheld the violation. The court explained that if a raised structure to which a worker has access also serves as a work area and allows for a fall of more than 1.2 m, it’s required to have a guardrail despite the provision of fall protection [Fisheries and Oceans Canada – Canadian Coast Guard,  OHSTC 13, April 19, 2012].
OK to Deny Visa Application Based on Criminal OHS Conviction in China
A Canadian visa officer rejected a Chinese citizen’s application for a permanent resident visa based on the grounds of “serious criminality.” As the owner of a company, the citizen had been convicted of charges under the Chinese criminal and OHS laws for a worker’s death. The federal court upheld the visa rejection. The officer had reasonably concluded that the Chinese criminal negligence conviction was the equivalent of a criminal negligence conviction under the Canada Criminal Code, which justified rejection of the visa application [Lu v. Canada (Citizenship and Immigration),  FC 1476 (CanLII), Dec. 21, 2011].
Series of Infractions & Threat Justify Worker’s Termination
A forklift operator was disciplined for failing to comply with the employer’s operating procedures, being absent without permission and not recording changes in his break times. When he next violated company policy, a customer complained. The worker subsequently made disparaging and racial comments to his supervisor, adding that he’d “fix a couple of guys here.” The employer considered this event the last straw and fired him. And the arbitrator agreed, concluding that the employer “had little choice” [Chandra v. Sim-Tran (Ontario) Inc.,  CanLII 51999 (ON LA), Sept. 14, 2012].
Officer’s Loss of Four Fingers Costs RCMP $100,000
A police officer lost four fingers on his right hand after he picked up a flash bang device with a faulty safety pin. Two other officers had left the device in a pail of water, believing the water would render it safe. The RCMP pleaded guilty to violating the Canada Labour Code. The court fined it to $10,000 and ordered it to pay $90,000 to two charities who help injured workers [Aug. 27, 2012].
Arbitrator Reinstates Worker Who Smoked Near Unloading Fuel
A federally regulated employer fired a worker for smoking on a tug while an attached fuel barge was unloading, claiming his conduct was a “gross safety violation.” He’d previously been warned about smoking on a tug, which violated company policy and regulation. The worker knew about the employer’s no smoking policy. And the potential consequences of his smoking while fuel was unloading were very serious. But the arbitrator reinstated the worker based on his prior employment record, instead imposing a lengthy suspension and loss of one year’s seniority [Island Tug and Barge Ltd. v. Canadian Merchant Service Guild (Reid Grievance),  C.L.A.D. No. 255, Sept. 6, 2012].
OK to Fire Clerk for Facebook Posts about Supervisors
The postal service fired a clerk with 31 years’ service after becoming aware of posts on her Facebook account that contained a number of derogatory, mocking statements about her supervisors and the employer. The supervisors disparaged in the posts became extremely upset after learning about the posts and required significant time off work for emotional distress. The arbitrator upheld the clerk’s termination, ruling that she was unapologetic, her posts viciously and unjustifiably targeted a manager and were accessible by current and former co-workers as well as the general public [Canada Post Corp. v. Canadian Union of Postal Workers (Discharge for Facebook postings Grievance, CUPW 730-07-01912, Arb. Ponak),  C.L.A.D. No. 85, March 21, 2012].
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