Canadian Occupational Safety

16 Canadian Occupational Safety www.cos-mag.com LEGAL LANDSCAPE LEGAL NORM KEITH OHSA anti-reprisal provisions not applicable to corporate restructuring Worker tried to use safety legislation to claim supervisor was not 'competent' I n an important decision of the Ontario Labour Relations Board, a worker complaining about a corporate restructuring and resulting changes in his supervision could not rely upon the anti-reprisal provisions of the Occupational Health and Safety Act (OHSA). In the decision of Jean Dionne v. MacLean Engineering, the board held that the applicant's complaint was not about health and safety per se, but rather a corporate restructuring, change in job classifi cation and human resources concerns. The applicant, Jean Dionne, worked in the electrical sub assembly department at MacLean Engineering. There was a corporate restructuring, resulting in a division of supervision within his department and different supervisors were assigned to different roles. Dionne took exception to this reassignment of supervision. He asserted that his new supervisor was not competent, resulting in vague references that there were workplace safety concerns. Dionne also asserted that his super- visor was not competent enough to criticize his performance and that the supervisor lacked knowledge of the skill required to do the job. In his complaint, he referenced that the OHSA required all supervisors must be "competent persons." According to the OHSA, a "competent person" is qualifi ed because of knowledge, training and experience to organize the work and its performance; is familiar with the act and the regu- lations that apply to the work; and has knowledge of any potential or actual danger to health or safety in the workplace. Dionne then fi led a complaint with the labour relations board alleging a contravention of section 50 of the OHSA. That provision says no employer or person acting on behalf of an employer shall dismiss or threaten to dismiss a worker; dis- cipline or suspend — or threaten to discipline or suspend — a worker; impose any penalty upon a worker; or intimidate or coerce a worker because the worker has acted in compliance with the OHSA or the regulations. Dionne argued that since section 50 of the OHSA establishes a reverse onus, the employer had an onus to prove that it did not contravene the OHSA when it restructured the company, affecting his employment status and his reporting obligations. Although the board accepted that the provision did provide a reverse onus, the onus would only apply if the prima facie was made out by the com- plainant. Therefore, the board had to determine if there was evidence of a safety related reprisal against Dionne. The board reviewed the evidence of the complainant and found the corporate restructuring did have an impact on Dionne. However, it was more related to his attitude towards his new supervisor and the restruc- tured corporation. Fur ther, the evidence indicated Dionne had been the subject of discipline for atten- dance issues and not completing his work assignments on time. Dionne responded to his poor performance review by alleging that his supervi- sor was not "competent" to assess his performance at work. The board held that although the OHSA does provide a specifi c defi ni- tion for a supervisor and also requires that a super visor be a "competent person," it must be interpreted in the context of the purpose of the legisla- tion. The OHSA relates to workplace safety, and not supervision generally, when it comes to requiring a supervi- sor to be a competent person. The board did not accept the sub- stance of Dionne's complaint was that his supervisor was not a "com- petent supervisor" for the purposes of the OHSA. There was no clear or discreet safety issue arising from Dionne's complaint. The board went on to say "an applicant under sec- tion 50 cannot trigger its application simply by invoking the act." In other words, there must be a clear and sub- stantial safety issue at play to support a section 50 reprisal complaint before the board. In the end, the board concluded Dionne's dispute with his employer, MacLean Engineering, was in relation to the corporate restructuring, new supervisor and his own workplace performance, rather than workplace health and safety. Therefore, the board said this was not a proper complaint under section 50 of the OHSA and dismissed Dionne's reprisal application. This decision is helpful to employ- ers who fi nd themselves dealing with employee or human resources chal- lenges that have been inappropriately raised or characterized as health and safety issues. Although the OHSA will be given broad application and interpretation, it should not be mis- used for a human resources or other complaint. The board 's decision determined the conduct in question was not workplace safety related. Employers must still be cautious and not ignore the powerful remedy that is provided to workers under section 50 of the OHSA. It is advisable that employers conduct a proper and thorough investigation of any alleged health and safety issues. Using an independent investigator will add objectivity to the assessment of a real and substantial safety issue. This case confi rms if an employer's objective determination is that there is no workplace health and safety issue relating to a particular employee, it will not be constrained by the section 50 reverse onus. Employers may change employees' positions, titles and responsibilities in good faith corporate restructuring without concerns about violating the OHSA. Norm Keith, an OHS lawyer and consultant, is a partner at Fasken Martineau DuMoulin in Toronto. He can be reached at (416) 868-7824 or nkeith@fasken.com, or visit www. ehslaw.ca for more information. is proud to be the recipient of both Canada's Best Health and Safety Culture Award and Canada's Best Psychological Safety Award. This would not have been possible without the dedication of our employees in going above and beyond the safety standards. NB Power Thank you for your commitment! Congratulations to all of the other recipients and nominees!

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