|A roundup of important new legislation, regulations, court cases and board rulings that we covered in 2013 in the OHS Insider newsletter.
LAW OF THE YEAR
Psychological Health & Safety
On Jan. 16, the final National Standard for Psychological Health and Safety in the Workplace was released. CSA Z1003 is intended to help employers implement new policies, procedures, hazard identification, incident investigation and monitoring activities to promote psychological safety at work.
OTHER NOTABLE REGULATORY CHANGES
On June 29, the Canada Gazette published a notice that Health Canada was seeking comments on draft Controlled Products Regulations under the Hazardous Products Act that would implement the GHS in Canada. (Final regulations hadn’t been released as we went to press.)
Transportation of Dangerous Goods
In Dec. 2012, the government published an amendment to the Transportation of Dangerous Goods Regulations that:
And in July, Transport Canada issued an emergency directive that required all rail operators to ensure that:
CASE OF THE YEAR
Record $1.5 Million in Penalties Imposed for Deaths of Chinese Oil Sands Workers
During construction of large metal storage tanks at an oil sands site, a roof collapsed and crushed two Chinese workers to death. Five others were injured. One of the companies involved in the work pleaded guilty to three OHS violations. The court fined it $200,000 and ordered it to pay $1.3 million to the Alberta Law Foundation to support outreach and education programs for temporary foreign workers and workers new to Alberta. According to an Alberta Justice spokesperson, the penalty is the largest ever imposed in the province on OHS charges [SSEC Canada Ltd., Govt. News Release, Jan. 24, 2013].
Employer Must Disclose Ergonomics Assessment Report to JHSC
After a worker was injured, the employer hired a consultant to do an ergonomics assessment. The resulting report contained recommendations on how to prevent future injuries. The employer didn’t give the report to the JHSC out of privacy concerns. A health and safety officer ordered the employer to do so, but it challenged the order. The OHS Tribunal noted that the OHS law required employers to provide the results of hazard assessments to the JHSC. The fact the ergonomics assessment was done by a consultant doesn’t relieve the employer of this duty. And because the report didn’t qualify as a “medical record,” privacy concerns were unfounded [Foreign Affairs and International Trade-Passport Canada v. Public Service Alliance of Canada,  OHSTC 17, May 6, 2013].
Postal Workers Not Entitled to Additional Pay for Attending Safety Training
A union complained that 28 postal workers should get paid at least $15 per hour for attending required training on safe lifting for 1.5 hours, arguing that workplace safety training isn’t a task or activity included in their daily duties or covered by their route wages. The arbitrator dismissed the grievance, ruling that training on safe lifting is a component of the employer’s duty to ensure workers know the hazards at work and provide the training necessary to ensure their health and safety. Thus, such training is a necessary and integral component of the workers’ daily work. In addition, there was no evidence that this training caused any of the workers to exceed their normal workday or workweek [Canadian Union of Postal Workers v. Canada Post Corp.,  C.L.A.D. No. 307, Nov. 1, 2012].
OK to Fire Worker for Off-Duty Assault of Co-Worker at the Workplace
A worker employed by a First Nation came to pick up a check at the office when she wasn’t on duty. Outside the office, she got into a disagreement and pushed a co-worker to the ground. She was arrested and pleaded guilty to assault. The First Nation fired her. She claimed it was wrongful dismissal to fire her for off-duty conduct. The arbitrator upheld her termination, noting that the assault took place outside of the office where the worker was employed and involved a co-worker who was working at the time. The employer had an interest in keeping its workers safe from assaults on the job. And both OHS law and First Nation policy barred workplace violence [Tawpisin v. Muskeg Lake Cree Nation,  C.L.A.D. No. 342, Nov. 21, 2012].
Also OK to Fire Shift Leader after He Was Caught Drunk Driving on Way to Work
A shift leader for an oil seed crush plant was caught drunk driving on the way to work. The employer discussed the incident with the worker, who denied having an alcohol problem. Citing safety concerns, the employer fired him. He filed a wrongful termination lawsuit. The arbitrator noted that the worker didn’t have a disciplinary record and had been considered a good employee. But the worker, who was in a safety sensitive position in a dangerous workplace, violated the plant’s drug and alcohol policy. And as a shift leader, he needed to set an example for the workers under him. Plus, he admitted intentionally drinking before driving to work. Thus, the arbitrator concluded that the employer was reasonably justified in firing him [Kish v. LDM Yorkton Corp.,  C.L.A.D. No. 211, Aug. 8, 2013].
Mail from Japan Didn’t Pose a Safety Hazard Justifying a Refusal
An earthquake and tsunami caused extensive damage to a nuclear facility in Japan and the release of radioactive materials. A few weeks later, Border Services officers at a mail facility noticed mail from Japan. Concerned that it may be contaminated with radiation, they initiated a work refusal. A health and safety officer investigated and concluded that there was no danger to the workers. They appealed. The OHS Tribunal ruled that, based on the evidence, the level of potential exposure to radiation coming from the mail from Japan couldn’t have reasonably been expected to cause injury or illness to the workers and thus didn’t meet the definition of “danger” under the Labour Code [Azeez v. Canada Border Services Agency,  OHSTC 8, Feb. 6, 2013].
Various Safety & Other Infractions Culminate in Foreman’s Firing
After being disciplined for various infractions, including violating safety rules, an employer finally fired a crew foreman. He sued. An arbitrator noted that the foreman was fired after failing to fill out driver daily log sheets. At the time, the employer properly considered his entire disciplinary record, which included failing to wear hardhats, safety goggles and fall protection when required. Because he was a foreman in what can be regarded as a safety-sensitive position, he was responsible for adhering to health and safety standards both for himself and his crew members, noted the arbitrator. Thus, there was just cause for his termination [Oberle v. Schindler Abroyd Inc.,  C.L.A.D. No. 32, Jan. 30, 2013].
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