Law of the Year
Traffic Control Persons
As of Jan. 1, workers are no longer permitted to work as traffic control persons (TCP) unless they’ve completed training as prescribed by the WHSCC, which must approve TCP training providers.
Other Notable Regulatory Changes
On July1, the province’s ban on designated smoking rooms in workplaces and smoking in cars when children under the age of 16 are present took effect.
As of Jan. 1, 2012, workers who use fall protection equipment must have completed training from an approved provider in order to work from heights or with fall protection equipment.
In Feb., the WHSCC extended coverage for workers at the former St. Lawrence fluorspar mine to include surface workers involved in the past extraction or handling of fluorspar.
Case of the Year
Firing of Driller for Positive Drug Test Upheld on Appeal
After being taken by helicopter to an offshore site, a driller and other workers were questioned about a marijuana cigarette that had been found back in the heliport’s reception room. They all provided urine samples. The driller’s test came back positive for marijuana because he said that he’d had “a puff” of a joint at a neighbour’s party. Even though a second sample came back negative, the company fired him. The driller sued for disability discrimination but the NL Board of Inquiry dismissed the complaint, ruling that he wasn’t disabled because he wasn’t an addict and there was no evidence that the company perceived or treated him as if he was an addict. And a court upheld the Board’s decision on appeal [Leonard v. Human Rights Commission,  NLTD 48 (CanLII), March 30, 2011].
Other Notable Cases
Mentally Disabled Worker’s Compliance with Agreement Was Necessary for Safety
A worker with bi-polar disorder sued the city he worked for, claiming it had fired him because of his mental disability. When the worker didn’t take his medication or relapsed, he posed a safety risk. So the city required him to comply with a memorandum of agreement (MOA) to ensure he could work safely and effectively. The court said the MOA was a reasonable attempt to accommodate the worker. And requiring compliance with the MOA was a bona fide occupational requirement necessary to ensure the safety of the worker and his co-workers [St. Johns (City) v. Human Rights Commission,  NLTD 83 (CanLII), June 9, 2011].
Mine Penalized $80,000 for Worker’s Broken Foot & Ankle
An attachment tore away from a dryer, causing the equipment and hoist to fall. As a result, a worker suffered broken bones in his ankle and foot. The employer pleaded guilty to failing to ensure that the hoist was operated appropriately and provide the information, instruction, training and supervision necessary to ensure workers’ health and safety. The court fined it $60,000, ordered it to pay $20,000 to Threads of Life and required a company official to present the details of a safety case developed by the company to an OHS conference [Wabush Mines, Govt. News Release, July 26, 2011].
Letter Regarding Work Hours Wasn’t a Reprisal
A temporary OHS coordinator claimed that his supervisor had given him verbal approval to work flex hours. But when issues arose about his attendance, he was told in a meeting that he didn’t have such approval. After the meeting, he called the government, claiming OHS violations were occurring in the workplace. A few days later, the employer sent him a letter reminding him to work regular hours. The coordinator claimed that the letter was in reprisal for his raising safety concerns. The Labour Relations Board disagreed. The issues about his attendance that were the subject of the letter arose before he contacted the government about his alleged safety concerns. The letter was just a follow-up to that meeting [Re: Miller,  N.L.L.R.B.D. No. 4, Aug. 24, 2011].