Improved protection from reprisals
Section 50 of the OHSA prohibits employers from dismissing, disciplining or otherwise penalizing a worker for acting in compliance with the Act, regulations or orders, or for seeking enforcement of the legislation. It also sets out a process for resolving a worker’s complaint of unfair employer discipline: the worker may have the matter dealt with by arbitration under a collective agreement, if any, or file a complaint with the Ontario Labour Relations Board (OLRB). Section 50 is intended to enable workers to freely raise health and safety concerns and to fully exercise their rights under the OHSA, such as refusing unsafe work, without fear of reprisal.
Currently, the MOL and the OLRB have distinct roles when responding to a reprisal complaint. MOLinspectors will visit the workplace and investigate any health and safety issue related to the complaint and will issue orders for contraventions of the OHSA or regulations. They will also inform the workplace parties of their rights and duties under Section 50 and refer the worker to the OLRB. Inspectors typically do not investigate whether a reprisal has in fact occurred, nor do they take enforcement action related to the alleged reprisal.
Section 50 authorises the OLRB to inquire into a worker’s complaint and to remove or change any penalty imposed. In doing so, the Board’s primary goal is to mediate a settlement between the workplace parties. It generally takes from 8 to 12 weeks for mediation to begin. If a settlement cannot be reached, an adjudicator will hold a hearing. It can take up to six months for a hearing to be scheduled, and it is held in Toronto. The OLRB receives about 100 reprisal complaints a year. About 20 to 30 per cent are from unionized workers and the rest are from unrepresented workers.
Concerns have been raised that the way in which Section 50 is currently administered discourages many workers from exercising their rights under the OHSA and does not adequately protect from reprisals those who do exercise their rights. The Panel heard some key criticisms:
- MOL inspectors have no role in investigating reprisal allegations.
- The OLRB procedures are complex and take a long time, and travelling to Toronto for a hearing is expensive.
- The MOL rarely prosecutes employers for violating Section 50.
Several serious reprisals came to the attention of the Panel Chair in the course of this review. In addition, information was provided to the Panel that described 30 alleged reprisals over a 26-month period. In 28 of these cases, the alleged reprisal was termination of employment. In 29 of the cases, the Ministry of Labour issued orders on health and safety infractions. Labour stakeholders stated that for every reprisal complaint made, many more go unreported.
The Panel recognizes that some of its recommendations in other areas — namely, for mandatory training, raising awareness and targeted enforcement — would likely result in more workers raising concerns related to workplace health and safety in the short term but that these as well as improvements to Section 50 processes would likely result in fewer reprisals in the future.
To expedite the resolution of reprisal complaints, the Panel supports a process that would see an expanded role for MOL inspectors with direct referral of egregious reprisals to the OLRB, and new procedures at the Board to ensure a prompt response to a referral.
MOL inspectors, in addition to investigating health and safety issues related to an alleged reprisal, would interview workplace parties involved in the allegation, as well as any witnesses, in order to document observations and accounts of the event. With the worker’s agreement, an inspector would refer to the OLRB any clear and obvious act of reprisal involving firing of the worker, and would submit records of the interviews. A copy of the records would be given to the employer. The OLRB would act quickly on referrals by offering timely access to mediation and adjudication, with the possibility of holding hearings outside Toronto, closer to the workplace parties’ community. The Board could also order interim reinstatement of the worker.
A new process to address serious reprisals involving worker dismissal would have significant benefits: an early and accurate recording of the event; a proactive response from the OLRB without the worker having to file a separate complaint with the Board; and, most important, it would enable workers to raise health and safety concerns without the fear of being fired, which may ultimately prevent injuries and fatalities.
Historically, the MOL has not taken enforcement action against employers where there has been a contravention of Section 50. Although current operational policy contemplates prosecution for “exceptional cases”, virtually no prosecutions have been commenced in recent years. To strengthen deterrence, the Panel supports enhanced enforcement under the OHSA to address egregious or repeated contraventions of Section 50.
Where an MOL inspector does not refer a reprisal allegation directly to the OLRB, the worker would be able to file the complaint, which would then be addressed under the Board’s current procedures. A common criticism of the current process is that it is too complicated. Many workers cannot understand the paperwork involved and simply give up. This may be particularly true for workers who face language or literacy barriers.
The Panel recognizes that many workers need help pursuing a reprisal complaint through the OLRB's process but that little support is available. Currently, only the Toronto Workers’ Health and Safety Legal Clinic provides advice and representation to non-unionized, low wage workers. For this reason, the Panel recommends that an independent, third party provide free information and services to workers wanting to file a reprisal complaint. The Panel also recognizes that many employers, especially those in small businesses, may need help responding to a reprisal complaint, and therefore recommends that similar support services be provided to them. Inspectors could refer workers and employers to such support services.
The Office of the Worker Adviser (OWA) and the Office of the Employer Adviser (OEA) are independent agencies of the MOL, set up to help the workplace parties navigate complex legal processes under the WSIA. With additional resources, the OWA and OEA would be well-placed to expand their mandates and provide similar support and advocacy services to workers and employers engaged in reprisal complaints.