|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
Workplace Bullying & Harassment
Three new OHS workplace bullying and harassment policies that clarify the obligations of employers, workers and supervisors as to workplace bullying and harassment took effect on Nov. 1, 2013. WorkSafeBC also released a toolkit of resources to help employers comply, including a training presentation.
CASE OF THE YEAR
Ferry Officer Convicted of Criminal Negligence & Sentenced to Four Years’ Jail
A jury found a former Queen of the North officer guilty of two counts of criminal negligence causing death in the disappearances of two ferry passengers. The ferry had been carrying 101 passengers and crew when it failed to change course and crashed into Gil Island. At the time, the officer was alone on the bridge with a helmswoman with whom he’d once had an affair. In sentencing the officer to four years in jail, the court said this relationship was a factor in the sinking. She also barred him from operating any vessel for 10 years [Karl Lilgert, June 24, 2013].
Collection of GPS Information from Cars & Cell Phones Allowed
The Information and Privacy Commissioner ruled on two cases involving the collection and use of GPS information:
Health Service & Manager Failed to Accommodate Paramedic with MS
A part-time paramedic with multiple sclerosis couldn’t “palpate a pulse.” The health service wouldn’t let him work as a paramedic, saying being able to feel a pulse was a bona fide occupational requirement. The Human Rights Tribunal found the health service and a senior manager liable for disability discrimination by failing to accommodate the paramedic. There was no evidence of actual harm arising from not having both paramedics being able to palpate a pulse. So the service could’ve accommodated him without undue hardship by making him a “Driver Only” or “Special Driver Only.” The Tribunal also criticized the manager for “actively thwarting” accommodation efforts and deliberately trying to prevent the paramedic from returning to work [Cassidy v. Emergency Health Services Commission,  BCHRT 116 (CanLII), May 6, 2013].
Firing of Foreman for Setting Worker’s Safety Vest on Fire Was Excessive
A foreman flicked a lighter at a piece hanging off a worker’s safety vest, setting it on fire. A customer put the small fire out, suffering burns to his hand. The employer fired the foreman for engaging in dangerous horseplay. The union challenged the termination as excessive, noting that he was a 32-year employee with a clean record. The arbitrator pointed out that the employer’s safety manual forbade horseplay. Despite the seriousness of the incident, the foreman didn’t consider his behaviour reckless, although he did immediately apologize. But his actions weren’t malicious—they were just “stupid.” So the arbitrator concluded that, based on all the circumstances, a lengthy unpaid suspension was more appropriate than termination [Dryco Drywall Supplies Ltd. v. Teamsters Local Union No. 213 (Sobieski Grievance),  B.C.C.A.A.A. No. 18, Feb. 19, 2013].
Employer Offered Injured Worker Appropriate Accommodations
A worker injured his back on the job. When he was able to return, the employer offered him a job working a forklift in the cold storage building because his old position was no longer available. But he refused it, saying he had cold sensitivity in a hand he’d hurt on a previous job. He then claimed disability discrimination. The Human Rights Tribunal dismissed his complaint. As soon as the worker was able to return, the employer offered him a job comparable to his old one. And the worker’s claim that he couldn’t work in the cold was contradicted by the fact he’d worked outside in the fall and winter. Plus, this sensitivity could’ve been accommodated with the heated gloves the employer had provided [Farmer v. Keltic Seafoods,  BCHRT 42 (CanLII), Feb. 7, 2013].
Hospital Workers’ Breast Cancer Wasn’t Work-Related
After three workers for a hospital were diagnosed with breast cancer, they filed workers’ comp claims, which were denied by the WCB as not being occupational diseases. But the WCAT overturned the denials. So the hospital appealed. The court ruled that there was “no positive evidence” that the women’s cancer was caused by occupational factors and the Tribunal ignored expert advice to the contrary. But the court refused to dismiss their claims outright, instead sending them back to the Tribunal because new evidence could result in different decisions [Fraser Health Authority v. Workplace Compensation Appeals Tribunal,  BCSC 524 (CanLII), March 28, 2013].
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