Law of the Year
In May, WorkSafeBC amended its guideline on work refusals to:
- Define what constitutes an “undue hazard”;
- Explain the test for determining whether a worker has reasonable cause to believe that an undue hazard exists; and
- Clarify the requirement for further investigating a work refusal in the presence of other parties.
Other Notable Regulatory Changes
On Feb. 1, amendments to the following parts of the OHS Regulation took effect:
- Part 1 (definition of qualified registered professional)
- Part 4 (definition of late night hours)
- Parts 4 and 26 (avalanches)
- Parts 1, 4 and 20 (notification of utilities)
- Part 4 (wire rope guardrails and prior approval)
- Part 8 (leg protection)
- Parts 4, 6, 8, 9, 12, 23 and 31 (respirator protection factors)
- Part 9 (alternate procedures)
- Part 12 (swing arm restraint)
- Part 13 (swing stages and prior permission)
- Part 15 (standards for slings)
- Part 16 (warning signal device)
- Part 19 (minimum clearance—electrical safety)
- Parts 5, 6 and 30 (biohazardous agents).
In March, WorkSafeBC added or revised the following OHS guidelines:
- Floor and roof openings
- Not clinically appropriate
- Locks not required
- Safeguarding – Exception for custom work
- Operator certification for cranes and hoists
- Isolation and lockout
- Responsibilities for employers to provide stairways to work levels during construction.
In April, it added or revised the following guidelines:
- BC Safety Authority
- Jurisdiction over oil and gas operations
- Labour supply firms and client employers – Responsibilities
- Labour supply firms and construction employers – Responsibilities
- High angle rope rescue program
- Tilt-up construction
- Electrical protective equipment for low voltage electrical equipment
- Slope limitations – Safe work procedures.
And in July, it revised the following guidelines:
- Part 5: Chemical agents and biological agents
- Part 7: Radiation exposure
- Part 9: Confined spaces.
In June, the WorkSafeBC Board of Directors adopted the revised American Conference of Governmental Industrial Hygienists Threshold Limit Values as BC occupational exposure limits (OELs) for cotton dust, methyl isobutyl ketone and thallium and soluble compounds as Tl.
And effective Sept. 15, the Board approved the adoption of new and revised American Conference of Governmental Industrial Hygienists Threshold Limit Values for eight substances, including:
- Acetic anhydride
- Carbon black
- Ethyl benzene
- Methyl isopropyl ketone
In July, the government announced expansion of the firefighters’ occupational disease regulation so that those who develop esophageal cancer can more easily qualify for workers’ comp benefits. Ten types of cancers are now recognized as occupational diseases associated with being a firefighter.
Case of the Year
Crown Dismisses Union-Brought C-45 Case
A worker got trapped by debris in the “hog” at a Weyerhaeuser sawmill and later died from his injuries. A WorkSafeBC investigation noted that despite the hazards the hog posed, no level of mill management took the initiative to eliminate the hazard until after his death. WorkSafeBC fined Weyerhaeuser $297,000 for this incident, noting the high-risk nature of the company’s violations, which were committed wilfully or with reckless disregard. In March 2010, the United Steelworkers union launched a private criminal negligence prosecution against Weyerhaeuser. But in Aug. 2011, the Crown essentially dismissed the case, saying the evidence didn’t present “a substantial likelihood of conviction against the company.”
Other Notable Cases
Company Must Pay Nearly $229,000 for Exploiting Tree Planters
A forestry company was ordered to pay 57 tree planters who endured horrendous labour conditions at work camps, such as dirty drinking water, squalid living conditions and a lack of food, nearly $229,000. The company’s owners were also fined $3,500 for violations of the Employment Standards Act [Khaira Enterprises, Khalid Mahmood Bajwa and Hardilpreet Singh Sidhu, Vancouver Sun, Jan. 24, 2011].
Crown Doesn’t Ask for Jail in Mushroom Farm Case
The operators of a mushroom farm pleaded guilty to OHS charges for an incident in which three workers were killed and two seriously injured after being overcome by a toxic gas in a composting shed. At their sentencing hearing, Crown prosecutors asked for heavy fines but didn’t recommend jail time. Families of the dead and injured said they were hoping for prison sentences. And the president of the BC Federation of Labour agreed that fines weren’t enough [Sept. 16, 2011].
Workplace Shooter Gets Life Sentence
A 63-year-old worker who shot his former boss to death at a staff Christmas party was convicted of second-degree murder and sentenced to life in prison with no chance of parole for 15 years. He arrived with a gun at the party the day after he was terminated. He opened fire, but no one other than the boss was injured. During his trial, it came out that he’d had a history of conflict in previous workplaces, including swearing at supervisors, slamming and kicking equipment and shoving a co-worker [Eric Kirkpatrick, May 6, 2011].
Firing Union Sympathizers for Bad Mouthing Company on Facebook Upheld
A car dealer fired two workers for posting comments about the company and its officials on Facebook, speaking about things like “unfair labour practices,” “workplace harassment,” responding to a “mental “attack” with stabbings and using obscenities to describe members of management. These remarks embarrassed the company, the Board ruled. And the fact that the workers who posted them were union supporters didn’t prove anti-union animus [Lougheed Imports Ltd. v. United Food & Commercial Workers International Union, Local 1518,  CanLII 62482 (BC L.R.B.), Oct. 22, 2010].
OK to Fire Workers for False Gun Possession Accusations about Co-worker
Two workers claimed that a co-worker brought a handgun into the lunchroom, loaded it in front of them and made violent threats. He was arrested and suspended. But after the charges were dropped, the company reinstated him and fired the two accusers. An arbitrator ruled that the harm to the co-worker and the company caused by their false accusations warranted termination. Their misconduct was extremely serious; their “malice” toward their co-worker caused him grievous harm and their actions caused the company to mistrust their credibility. And the Labour Relations Board upheld this ruling as reasonable [Aspen Planers Ltd. v. United Steelworkers of America Local 1-417,  CanLII 33748 (BC LRB), June 8, 2011].
Union Successfully Challenges Drug & Alcohol Policy on Some Grounds
A union challenged parts of an employer’s drug and alcohol policy for its aluminum smelter operations. The arbitrator ruled that the employer could set rules on drug and alcohol use in the workplace and require immediate drug or alcohol tests where there are reasonable grounds for such tests. But the employer can’t require broad medical evaluations and discipline workers who refuse them when those evaluations aren’t tied to unauthorized drug or alcohol use. In addition, the “zero tolerance” part of the policy was unreasonable because it called for immediate termination and didn’t include the “just cause” standard for discipline [Rio Tinto Alcan Primary Metal Kitimat/Kemano Operations BC v. National Automobile, Aerospace Transportation and General Workers of Canada, Local 2301,  CanLII 7211 (BC L.A.), Feb. 6, 2011].
Employer Discriminated Against Worker Who Requested PPE Accommodation
An employer required its paramedics to wear a respirator for which they had to be clean-shaven. A worker asked for an accommodation, claiming that he had a skin condition that was irritated by frequent shaving. Instead of letting him use a different respirator, the employer put him on short term leave and later suspended him for making a “frivolous” accommodation request. The WCAT concluded that the employer had discriminated against the worker and a BC court agreed. The worker had exercised a right under the law to appropriate PPE, which the employer was required to provide [Emergency and Health Services Commission v. Wheatley,  BCSC 1769 (CanLII), Dec. 9, 2010].
Fines Reduced for Worker’s Death in Crane Incident
A 22-year-old worker was crushed when his crane toppled over as he tried to lift more weight than his machine could handle. WorkSafeBC fined the worker’s employer and the prime contractor $233,000 for the incident. But the review division cut the employer’s fine in half and cancelled the fine against the prime contractor. The review found that although a high-risk violation had occurred, it wasn’t committed wilfully or with reckless disregard. In addition, there was no indication the prime contractor had failed to ensure proper health and safety procedures [SNC-Lavalin Constructors (Pacific) Inc. and Rizzani de Eccher, Govt. News Release, Feb. 23, 2011].
Ferry Captain’s Termination Wasn’t an Illegal Reprisal
The captain fired after the sinking of the Queen of the North ferry claimed that the ferry service terminated him for raising OHS issues during the inquiry into the incident. The WCAT disagreed and so did the appeals court. The captain had raised 58 safety concerns, none of which related to the sinking that was the focus of the inquiry. The company didn’t dismiss these concerns but tried to get the captain to focus on the matter at hand—the ferry sinking. But he evaded responsibility for the incident and didn’t act like a member of the management team should during an inquiry—and that’s why he was fired [Henthorne v. BC Ferry Services Inc.,  BCSC 409 (CanLII), April 1, 2011].
Dismissal of Worker for Lockout Violation Was Justified
An arbitrator upheld the firing of a worker for violating company lockout procedures. The worker had prior safety infractions, including one for a lockout violation. In addition, the worker couldn’t claim that he hadn’t been properly trained on lockout procedures—although he’d signed a record indicating that he had—while also maintaining that he thought he’d properly locked out the machine [Pacific Inland Resources v. Northern Interior Woodworkers Assn., Local 1 (Patrick Grievance),  B.C.C.A.A.A. No. 66, June 17, 2011].
Not Letting Worker Return to Work after Back Injury Was Discrimination
A worker injured his back on the job and was out of work for six days. When he was ready to return, the company wouldn’t let him. When the worker told his supervisor that he might have mild scoliosis, the supervisor told him that because of the likelihood he would re-injure his back, “they were going to have to let him go.” So the worker claimed discrimination based on a perceived disability (a weak back). The Human Rights Tribunal didn’t buy the company’s excuses for letting the worker go and noted that there was no evidence that letting him return to work would have been an undue hardship [Cartwright v. Rona,  BCHRT 65 (CanLII), March 17, 2011].