Safety at work is a tricky subject for both employers and workers. As either an worker or an employer, everyone has likely heard the golden rule that ‘workers have a right to refuse unsafe work.’ This is a legal right that workers across Ontario have and it is important to understand how this right under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”) plays out in terms of the responsibilities and obligations of all parties involved.
While easy to understand in concept, one of the primary concerns in the workplace is how do workers effectively raise safety complaints to their employers and what obligations do employers have with respect to it? On a day-to-day level the answer is not so simple, when faced with tight deadlines and busy workloads workers and employers may often treat safety issues as secondary.
If a worker is faced with an unsafe work situation then they should issue a safety complaint as soon as possible. This triggers an obligation on the employer to respond to that complaint. Workers have a right to seek their rights under the OHSA free from reprisal from their employer. Reprisal can take multiple forms, for instance: being improperly reprimanded, a worker losing shifts or in some cases a termination of employment.
Correspondingly, the employer should respond to safety issues or complaints in a diligent and reasonable manner without reprisal against the worker. While there is no specifically prescribed form of response for employers under the OHSA, employers are required by law to implement written workplace policies in respect of workplace safety and workplace harassment.
Employers who have had these obligations triggered should seek to adjudicate these safety concerns in a diligent and efficient manner according to their workplace policies. Employers seeking to discount, or worse, take action against these complaints will do so at their peril.
This was the case in a recent case at the Ontario Labour Relations Board. An employee raised complaints with his employer about a particular task assigned to him and subsequently was terminated in the following weeks. The Labour Board in that case found that the employer had not met their obligations to respond to a complaint under the OHSA and that the termination was a negative consequence connected to the safety complaint made by the employee. As a result, the Board awarded damages against the Employer for: loss of earnings, value of the job lost, and pain and suffering.
Cases like these are preventable if all parties in the workplace understand their rights and obligations under the OHSA.
At a fundamental level, every workplace should have safety in mind. Employees should receive a solid understanding of what workplace policies are in place as well as knowing the designated personnel to speak to when seeking to raise health and safety concerns. Likewise, it is important for employers to have an effective health and safety policy and framework in place to diligently and efficiently process with health and safety issues in the workplace.
Workplace safety and workplace harassment policies are required by law in Ontario.
The Case:
William Joseph Thorogood v. North 44 Property Management, 2018 ON LRB 82724 (CanLII)
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