Monday, August 26, 2013

Health & Safety Case Law Review

From the changes made under the Occupational Health and Safety Act over the past couple of years, case law is now appearing.  A year and a half after the legislation was passed for Bill 168 - Violence and Harassment in Ontario - we are starting to see evidence in the courts.  In other provinces, precedence is being set as with the ruling for a health and safety representative in Nova Scotia.

In the Ontario case - Murphy verses Carpenters 2011 - an application was made under Section 50 of the Occupational Health and Safety Act in which the applicant Gary Murphy alleges that his former employer, The Carpenters District Council of Ontario dismissed him from his employment as a reprisal for raising complaints about his immediate supervisors conduct.  Despite the responding parties position that the applicant failed to make out a prima facie case of a breach of the act, it has been determined that this application puts reverse onus on the employer to provide proof that the employees dismissal did not occur as a result of the employee acting in compliance with OSHA or seeking its enforcement.  This case has been referred to the Registrar to list for hearing. 
It will be interesting to follow this case to its conclusion.  To read more about this case -

In another reprisal case, the Ontario Labour Relations Board has made a ruling that it does not have jurisdiction to hear a complaint under the Occupational Health and Safety Act where an employee suffers reprisal for raising a harassment complaint with his or her employer; as a result of November 18th, 2011 decision in the Harper verses Ludlow Technical Products Canada Ltd.  This forces employees to deal with harassment under their internal corporate policies and not through OLRB.  This does not mean employees can't take their case to Human Rights.
To read more on this case:

In Nova Scotia a health and safety representative has been charged for failing to follow through with an employer on a report of asbestos found in the insulation of housing units that he presented to two supervisors employed with his employer.

The court found the safety representative guilty of failing to take reasonable precautions for the safety of persons at or near the workplace, including residents of the homes that contained the asbestos insulation.   This decision came about due to his job description that identified he was responsible for promoting a safe and healthy workplace. This case resulted in a conviction and a $1000.00 fine for the safety representative and 515 compliance orders.

For more information on this case go to:

Lynne Bard, BA (Honours), C.H.R.P., CES
Human Resources, Safety & Risk Management Experts
Taking the Complexity out of Compliance
Beyond Rewards Inc.
Phone: 519-821-7440
Cell: 519-830-7480

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