|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
In July, most provisions of Bill 14, the Workers Compensation Amendment Act, 2011, took effect, including:
OTHER NOTABLE REGULATORY CHANGES
On Feb. 1, 2012 changes to the following parts of the OHS Regulation took effect:
And in April, WorkSafeBC proposed amendments to the following parts of the OHS regulations:
On April 15, 2012, amendments to the working alone requirements for late night retail premises in Part 4 of the OHS Regulation took effect. Employers may now implement a prescribed and audited Violence Prevention Program as one option to protect workers assigned to work alone at night.
In March, WorkSafeBC released the Domestic Violence in the Workplace Tool Kit, which provides advice on how to recognize the signs that workers may be affected by domestic violence, has information about employers’ legal obligations and contains strategies to help avoid situations where domestic violence could affect the safety of workers and the workplace.
Influenza [ok to cut]
In Aug,, BC implemented the first policy in Canada requiring healthcare workers to get a flu shot or wear a mask at all times and everywhere in the facility (except the cafeteria). It applies to staff at publicly funded facilities, including long-term care homes.
CASE OF THE YEAR
Firing of Ferry Captain Upheld on Appeal
The decision to fire the captain of the Queen of the North, which sank off BC in March 2006 killing two passengers, was upheld by the BC Court of Appeal. The captain was allegedly fired due to operational and staff requirements. He claimed that he was really fired because he’d raised safety concerns during an internal inquiry into the tragedy. Although a WCB case officer found that he’d been discriminated against, the Workers’ Compensation Appeal Tribunal reversed that decision. The Court of Appeal dismissed his appeal, ruling that the Tribunal’s conclusions were supported by evidence and weren’t otherwise “patently unreasonable” [Henthrone v. British Columbia Ferry Services Inc.,  B.C.J. No. 2228, Nov. 24, 2011].
Operator of Asbestos Company Gets 60 Days’ Jail for Defying Court Order
A man who ran an asbestos abatement and demolition business didn’t send samples to labs for testing for asbestos, forged testing reports on stolen lab letterhead, employed workers as young as 14, didn’t provide them with PPE or training and instructed them to run away if a safety inspector showed up. He then defied a court order barring him from continuing this kind of work. He was held in contempt. In sentencing him, the court noted that his “indifference to the lives and safety of his workers and his open defiance of the injunction required a severe response.” It sentenced him to 60 days’ jail [BC (Workers’ Compensation Board) v. Moore,  BCSC 109 (CanLII), Jan. 24, 2012].
Resort Banned Skechers Shape-Up Sneakers Without Full Risk Assessment
The JHSC at a resort recommended a ban on the wearing of Skechers Shape-Up sneakers and similar shoes with curved soles, claiming they were unsafe. The recommendation came after a worker wearing Skechers tripped and was hurt. The resort issued the ban, which the union challenged. Although the arbitrator acknowledged that the resort had a duty to ban such shoes if they posed a safety risk, neither the employer or JHSC did a thorough risk assessment of this type of shoes. Thus, the resort didn’t have a reasonable basis to conclude that they were inappropriate for use at work by all workers in all departments [Unite Here Local 40 v. Harrison Hot Springs Resort & Spa (Footwear Grievance),  B.C.C.A.A.A. No. 68, May 16, 2012].
Worker’s Negligent Safety Error Deserved Unpaid Suspension, Not Firing
A forestry worker felled a tree without warning a co-worker, who was hit by the falling tree and injured his ankle. The company fired the worker for being “100% responsible for a preventable nearly fatal accident.” The union challenged his firing as excessive. The arbitrator noted that the worker was clearly remorseful, very upset about what happened and freely admitted his errors. Although his conduct was negligent, it wasn’t reckless. He was a long-time employee and a good faller. So the arbitrator concluded that the worker could be a productive and safe employee in the future. It substituted a four-month unpaid suspension [Western Forest Products Ltd. v. United Steelworkers Union, Local 1-1937 (Cyr Grievance),  B.C.C.A.A.A. No. 97, July 10, 2012].
OK to Fire Worker for Threatening to Bring a Gun to Work
A worker was upset at how a manager treated a co-worker. She told the manager that if the manager ever did that to her, she’d go home, get her boyfriend’s gun and bring it to the store (she was dating an RCMP officer at the time). The store fired her. And an arbitrator upheld this decision. The worker had a disciplinary record that showed she was assertive, used profanity and was disrespectful. She repeatedly denied ever making the threat. And in today’s climate where any threat is serious and given her disciplinary record, termination wasn’t excessive, concluded the arbitrator [Overwaitea Food Group v. United Food and Commercial Workers, Local 1518 (FS Grievance),  B.C.C.A.A.A. No. 119, Sept. 5, 2012].
Case Will Continue Against Safety Trainer for Using Pictures of Naked Women
A female worker claimed that during a safety training session in which she was the only woman, the instructor showed pornographic pictures of naked women. She filed a sexual harassment complaint against the instructor and the Ministry. The Human Rights Tribunal dismissed the complaint against the Ministry but ruled that the case against the instructor could proceed. He admitted using pictures he’d scanned from Playboy to “relax” the mainly male training class. Thus, he didn’t establish that the worker’s complaint had no reasonable likelihood of success [Pitcher v. BC (Ministry of Forests),  BCHRT 70 (CanLII), March 12, 2012].
Employer Discriminated Against Worker Based on HIV+ Status
While a worker was out on medical leave, his employer learned from a co-worker that he was HIV positive. When he told the employer he was ready to return to work, it claimed there was no work available. He filed a disability discrimination claim. The Human Rights Tribunal noted that the employer had considered the worker to be an outstanding worker. It was only after learning he was HIV positive that it suddenly had no work available for him, when this was actually a very busy time for it. Thus, the Tribunal ruled that the worker’s disability was a factor—if not the only reason—for the employer’s failure to let him return to work. It ordered the employer to pay him $20,000 in damages plus almost $7,000 in lost wages [Malin v. Ultra Care Cleaning Systems Ltd.,  BCHRT 158 (CanLII), May 9, 2012].
Worker Appropriately Fired for Threatening to Give Co-Worker a Black Eye
An employer fired a worker for several reasons including threatening to blacken a co-worker’s eyes. An arbitrator ruled that termination was warranted for the threat and use of inappropriate language. The worker had been suspended for insubordination and disrespectful conduct shortly before this incident. The co-worker hadn’t provoked the worker. And being called a “loudmouth” by the co-worker hardly deserved a profanity-laced response and threat of physical violence [Teck Coal Ltd. (Line Creek Operations) v. International Union of Operating Engineers, Local No. 115 (Graham Grievance),  B.C.C.A.A.A. No. 135, Dec. 7, 2011].
Company Fired Worker for Re-Injuring His Thumb
A worker injured his thumb on the job and needed surgery. When he was better, he returned under a graduated return to work (GRTW) plan. He aggravated his injury handling a 3-inch hose, which he wasn’t supposed to do under the plan. The company fired him for violating the terms of his GRTW plan. He claimed disability discrimination. The Human Rights Tribunal noted that the company knew he wasn’t supposed to work with 3-inch hoses but assigned him a job involving such hoses anyway, which exposed him to possible re-injury. It found that the company knew about the worker’s re-injury when it fired him and that this injury was a factor in his termination [Sikora v. Rebo Benton Pumping,  BCHRT 29 (CanLII), Feb. 15, 2012].
Injured Cop’s Accommodation Demands Were Unreasonable
A police officer worked in the traffic division on a motorcycle until he hurt his knee and herniated a disk. After surgery and rehab, he tried but couldn’t return to his prior duties. So he asked to work at the range, where he was reassigned. But the job was physically demanding and the officer had chronic back problems. When the sergeant in charge of the range raised concerns about his limitations, he claimed disability discrimination and refused to return to the range until the sergeant was removed. The Human Rights Tribunal rejected his claim. The physical standards required to work at the range were reasonable. The employer had offered the officer three other positions but he rejected them all. His demands were unreasonable. Thus, the Tribunal concluded that the officer had failed to reasonably participate in the accommodation process [Smith v. Vancouver Police Board (No. 6),  BCHRT 100 (CanLII), March 28, 2012].
Workplace Violence Costs Health Authority $97,500
WorkSafeBC fined a health authority $97,500 after three incidents of violence during an eight-month period. The first incident occurred at a mental health facility, where one worker was assaulted and an attempt was made to assault a second worker. Then a patient with a history of violence was discharged to a residential care facility, where he assaulted a worker. Lastly, another patient at a hospital psychiatric unit fired a pellet gun, striking three workers [Vancouver Island Health Authority, Nov. 9, 2011].