The Latest in Employment Law: A Stewart McKelvey Newsletter – Occupational health and safety: duty to report and protection against reprisal

Ian Wallace

The Occupational Health and Safety (“OHS”) legislation in Atlantic Canada and across the country recognizes the internal responsibility system. Everyone in the workplace is responsible for their own safety and the safety of co-workers. There is a right to refuse unsafe work and a duty to report unsafe conditions. The Prince Edward Island OHS Act for example provides:

28. (1) A worker may refuse to do an act at the worker’s workplace where the worker has reasonable grounds for believing that the act is likely to endanger the worker’s occupational health or safety or the occupational health and safety of another worker.

The OHS legislation in Atlantic Canada imposes specific reporting responsibilities on workers exercising their statutory right to refuse unsafe work. An unrestricted right to refuse work could otherwise cause havoc in the workplace. The right to refuse work granted to workers is a direct statutory interference with the right of employers to direct and supervise work in the workplace. These rights must be construed in the context of the specific OHS legislation in the jurisdiction of work.

The statutory reporting procedure in Nova Scotia, New Brunswick, and Prince Edward Island is similar. A worker asserting a right to refuse work must report the unsafe condition to his/her supervisor. If the situation is not resolved to the worker’s satisfaction following investigation by the supervisor, the worker must make a further report to the OHS Committee for the workplace to maintain a work refusal. Failing satisfactory resolution by the Committee, the worker must further report the unsafe condition to the OHS Division. This hierarchy is represented by s. 17(2) of the Nova Scotia OHS Act:

(2) Where an employee believes that any condition, device, equipment, machine, material or thing or any aspect of the workplace is or may be dangerous to the employee’s health or safety or that of any other person at the workplace, the employee shall

     (a) immediately report it to a supervisor;

     (b) where the matter is not remedied to the employee’s
satisfaction, report it to the committee or the representative,
if any; and

     (c) where the matter is not remedied to the employee’s
satisfaction after the employee reports in accordance with
clauses (a) and (b), report it to the Division.

The reporting procedure in the Newfoundland and Labrador OHS Act is different than in the other Atlantic provinces. Section 46 provides that a worker who exercises a right to refuse unsafe work, or believes the workplace is unsafe, shall immediately report it to a supervisor:

46. Where a worker exercises his or her right to refuse to work under section 45, or where he or she believes that a tool, appliance or piece of equipment, or an aspect of the workplace is or may be dangerous to his or her health or that of other workers at the workplace or another person at the workplace, the worker shall immediately report it to his or her supervisor.

If the matter is not remedied following the report to the supervisor, the worker shall report it directly to the OHS Division or an OHS Officer:

47. Where a worker has made a report under section 46 and the matter has not been remedied to the satisfaction of the worker he or she shall report it, either in writing or orally, to the division or an officer.

Under the Newfoundland and Labrador OHS Act, there is no obligation to make a report to the OHS Committee for the workplace.

The procedure for reporting an unsafe work condition has implications for other provisions of the OHS Acts. Employers should be aware of the specific procedures for their jurisdiction as they will directly relate to protection granted to workers under OHS legislation.

The internal responsibility model is supported by provisions in OHS legislation that provide protection against reprisal by employers as a result of workers seeking enforcement of their statutory OHS rights. These provisions prohibit employers dismissing or disciplining workers asserting rights related to unsafe work conditions. While the scheme of the OHS legislation in Atlantic Canada in respect of protection against reprisal is similar, the statutory language differs.

The OHS Acts of Nova Scotia, New Brunswick, and Prince Edward Island generally protect workers against discrimination, including dismissal or other disciplinary action, as a result of having reported an unsafe condition. Section 24(1) of the New Brunswick Act for example provides:

24(1) No employer or union shall

     (a) take any discriminatory action against an employee, or

     (b) threaten to take any discriminatory action against an
employee or intimidate or coerce any employee,

     because the employee has sought the enforcement of this Act,
the regulations or an order made in accordance with this Act or
the regulations, or has acted in compliance with this Act, the
regulations or an order made in accordance with this Act ….

The Acts of these provinces extend to any action where employees seek “enforcement of the Act” or “acts in compliance with the Act”. This refers to the mandatory reporting procedures in the Act. If a worker in good faith reports an unsafe condition in accordance with the procedure in the Act, he/she should be protected against any discriminatory retaliation by the employer.

The Newfoundland and Labrador OHS Act is somewhat more prescriptive. It does not include the general language related to enforcement of or compliance with the Act. Section 49 provides:

49. An employer or union shall not take a discriminatory action against a worker by dismissing him or her or by … taking other disciplinary action …

     (c) because the worker has given information to the Workplace,
Health, Safety and Compensation Commission, an officer or
another person concerned with the administration of the Act
or the regulations concerning the health, safety and welfare of
workers at his or her workplace; …

The protection granted in Newfoundland and Labrador is limited to reports to Workplace Health, Safety and Compensation Commission, an OHS Officer, and “another person concerned with the administration of the Act or Regulations”.

Courts and Labour Relations Boards in Atlantic Canada have interpreted the right to protection against reprisal in the context of the specific reporting requirements in each province.

In Brunswick Mining & Smelting Corp v Savoie, the New Brunswick Court of Appeal considered s. 24(1) of the Act. The employee filed a Complaint with the OHS Board alleging he was dismissed because he refused underground work on the basis his compromised respiratory system rendered it unsafe. He did not take any intermediate steps prior to filing the Complaint. The Board and reviewing judge upheld the Complaint. The Court of Appeal overturned the decision on the basis the worker did not establish the conditions required for protection against reprisal. The worker failed to seek the enforcement of the Act:

19 … there had not been, at any time, an attempt by the employee to enforce any provision of the Occupational Health and Safety Act prior to dismissal. This, as I see it, is an essential first step or condition precedent. The employee must have called into play or attempted to call into play the provisions of the Act in a matter relating to health or safety. If this type of action by an employee, that is, enforcement of the Act, results in dismissal, all the requirements of s.24 would be met to show discriminatory action. 

In Wooten v 323195 Nova Scotia Limited (“Wooten”), the Nova Scotia Labour Board considered the mandatory reporting procedure in s. 17(2). The Board found that the worker had reported his concerns to his supervisor. However, when the employer did not resolve the worker’s concerns, the worker failed to make a further report to the OHS Committee or a representative as required by the Act. He lost the protection of s. 45(2):

[16] Subsection 45(2) only prohibits discriminatory actions committed in relation to compliance with, or enforcement of the Act. That means that the Board must be satisfied that an employee has attempted to engage the Act to be able to find that an action against the employee was prohibited by s. 45(2). … If the employee does not make reasonable efforts to comply with the s. 17(2) process, the Board will not be able to find that he/she attempted to engage the Act to address workplace health and safety concerns. As a result, the Board will also be unable to find that the action, even if it was a discriminatory action, was prohibited by the Act.

Similar reasoning followed in MacIsaac and Channel Maintenance Services where the Nova Scotia Labour Board found the worker’s failure to report his safety concerns to his supervisor denied him protection of the Act:

While the Board finds that the Appellant’s dismissal was a discriminatory action, the facts at hand do not support a finding that it was prohibited by the Act. Subsection 17(2) provided the process the Appellant needed to use to enforce the Act. He did not comply with s. 17(2) to properly engage that enforcement process as he ignored the first step which was to immediately report it to his supervisor. Instead he chose the most inopportune time to raise the issue and there was no justification provided by him for doing so. Consequently, the Board cannot find that enforcement of the Act was one of the reasons he was dismissed if he did not take the mandatory steps he needed to take to enforce the Act until after the matter had, in many respects escalated out of control. 

The Labour Relations Board for Newfoundland and Labrador this year determined a Complaint filed under s. 49 of the OHS Act in Tucker v. HSE Integrated Inc. The employer had a contract with Astaldi Canada to supply workers at the Muskrat Falls Hydroelectric project. The worker alleged an unsafe work condition to his supervisor. When this was not resolved to his satisfaction, the worker reported it to the Astaldi Project Manager. He filed his Complaint when the employer terminated his employment for reasons including inappropriate communication with the Project Manager.

The Board ruled the Complainant must make reasonable efforts to comply with the reporting procedure in the Act to obtain the protection against reprisal. The Board followed Wooten where the rationale for requiring workers to follow the mandatory reporting procedure was outlined. The Board rejected the worker’s submission the absence of the generic words “seek enforcement of the Act” distinguished the Act from Nova Scotia and New Brunswick jurisprudence. The Board said s. 47 clearly imposed an obligation to report on which the protection against reprisal was predicated:

The complainant sought damages against his employer for an alleged wrongful termination. Having failed to invoke the Occupational Health and Safety Act, the applicant could not rely on the protections of that Act in order to assist him. While it is trite to say that safety is everybody’s business, the applicant had a duty under the OHSA to report his serious concerns to WHSCC or OHS or an officer or another person concerned with the administration of the Occupational Health and Safety Act. He failed to do so. He cannot now rely on the protections of the Act when he has failed to discharge his duty to report under s. 47.

The Board rejected the worker’s argument the reference in s. 49 to “another person concerned with the administration of the Act or the regulations concerning the health, safety and welfare of workers” was inclusive of the Project Manager. The Board applied the ejusdem generis rule of interpretation to determine the general words (“another person concerned with administration of the Act …”) must be construed narrowly to fit the context of the preceding specific language.

Employers should be particularly alert to the provisions of OHS Acts in considering actions taken by workers outside of the usual lines of reporting at the workplace where unsafe work conditions are alleged. The OHS Acts of each province in Atlantic Canada imbue workers with specific rights related to workplace safety. The statutory conferral of rights has corollary obligations. The rights must be exercised strictly in accordance with the legislation. Where otherwise, the protection against discriminatory reprisal also granted by the Acts may be denied to the workers.

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