As in the rest of Canada, it’s illegal in Ontario to discipline workers in retaliation for exercising their rights under the OHS laws. But although reprisal restrictions are neither new nor unique to Ontario, the new rules that take effect on April 1, 2012, are a concern for Ontario employers because they may lead to more reprisal claims.
There was some initial confusion as to when the reprisal changes would take effect. But according to the MOL, all sections of Bill 160 will be in effect as of April 1, 2012 except for those relating to training requirements for health and safety representatives.
The Current Reprisal Rules
Section 50(1) of the Ontario OHS Act bars employers from firing, disciplining, penalizing or intimidating a worker for exercising his rights under the OHS law, such as raising safety concerns or serving on the company’s JHSC. Section 50(2) sets out the two things workers can do if they feel they’ve been the victim of a reprisal:
- Go to arbitration under their collective agreement; or
- File a reprisal complaint with Ontario Labour Relations Board (OLRB).
In either case, it’s the worker who bears the burden of bringing the reprisal claim. And workers may be reluctant to sue the organization that employs them. In fact, the Dean Commission said in its report that workers were reluctant to sue their employers for reprisals and recommended changing the rules. (For more about the Dean Report, go the OHS Insider’s Ontario OHS Reform Compliance Center.)
The New Reprisal Rules
Bill 160, the Ontario OHS reform law that took effect June 1, 2011, changed Sec. 50 to add a new subsection (2.1), which allows a Ministry of Labour (MOL) inspector to file a reprisal claim with the OLRB on a worker’s behalf if:
- The claim hasn’t already been dealt with in arbitration through a final and binding settlement; and
- The worker consents to having the MOL bring the case.
The OLRB recently revised its reprisal procedures to implement this new referral power for reprisal claims. And on Sunday, the OLRB will begin using those procedures to process reprisal cases referred to it by MOL inspectors.
In addition, a new OHS regulation on the functions of the Office of the Worker Adviser (OWA) and the Office of the Employer Adviser (OEA) with respect to reprisal complaints by workers also takes effect on April 1. In a nutshell, the MOL says the purpose of the new regulation is to provide—free of charge—educational information about reprisals as well as legal advice and representation for reprisal complaints to non-unionized workers (role of the OWA) and “small employers,” that is, those with fewer than 50 employees (role of the OEA).
Bottom Line: Now that workers can bring reprisal complaints without having to actually do so themselves, such claims are likely to become more common in Ontario. And in an OLRB proceeding, the employer must prove that it did not commit reprisals to avoid liability.
3 Ways to Protect Yourself
Although reprisals assume a new urgency in Ontario, employers across Canada face liability risks for reprisals. Three things you can do to protect yourself:
- Implement a non-retaliation policy at your workplace;
- Use progressive discipline to enforce your company’s safety policies and procedures consistently as to all workers; and
- Establish a system for investigating and responding to worker reprisal claims.
Click here to find out how to impose legitimate discipline against a worker who deserves it without being liable for reprisals if that worker also happened to make an unrelated safety complaint.
You can also download a special report—Discipline & Safety: The “Reprisals” Challenge and How to Overcome It—that’ll tell you more about protecting your company from reprisal claims.
Ontario OHS Reform Webinar
To learn about the latest developments in Ontario, attend our May16th webinar on Bill 160 and the Ontario OHS reform process. The speaker will be Dylan Short, managing partner of The Redlands Group and chair of the OHS Summit 2012.
Remember – OHS Insider Pro members can attend for FREE! But if you’re not an OHS Insider Pro member, you can still buy access to this webinar and others.