Health and safety caselaw update

Transcription

1 Health and safety caselaw update Adrian Miedema, Partner

2 A truly poisoned work environment: employee properly fired for spiking office water cooler with bleach: Knox v. Treasury Board 27-year employee strong chlorine smell in office water cooler Video surveillance Fired for cause

3 Appeal court upholds $270K fine - even where MOL and company agreed on $180K: Matcor Automotive JP fined company $270K after trial, even though MOL asked for $175K- $225K Company appealed: MOL and company agreed $180K appropriate Appeal judge: $270K fell well within appropriate range and was upheld

4 Adjudicator refuses to anonymize employee s name in medical accommodation case: OPSEU v. Ontario Case officer with Ontario Ministry Injured back, wrist and arm at work Complained about accommodation Adjudicator refused to anonymize name

5 MOL inspectors have power to Order employers to produce documents even where no contravention of OHSA: Chatham-Kent Municipal fire service Anonymous complaint about training programs OLRB refused to suspend MOL inspector s order to produce documents

6 Lack of remorse results in 4 month jail term for supervisor in fatal trench incident: Haya Homes Worker died when trench collapsed Employer and supervisor pleaded guilty Judge: employer and supervisor exploited worker Supervisor lacked remorse: jailed for 4 months

7 City inspector who engaged in two separate physical attacks at work was fired for cause: CUPE v. Toronto Inspector with City s water division One incident: struck a coworker Second incident: struck a city contractor Fired for cause: that risk must be removed from the workplace

8 Well-trained worker s negligence, which was unforeseeable, caused his death: company not guilty of OHSA charge: Samuel, Son & Co. Worker died when he cut a band holding steel coils together 18-year worker, 80 hours of hands-on training Due diligence established: company not guilty

9 Second OHSA conviction gets construction employer jailed for 30 days: Ji Nan Li Worker detached lanyard, fell 30 feet, seriously injured Employer s second conviction re fall protection Guilty plea: sentenced to 30 days in jail

10 Violence is not the mere absence of civility - town employees did not have reasonable basis to fear protester: Bracken Man protesting town council s intention to permit medical marijuana facility Town employee s expressed fear for their safety Town s CAO issued trespass notice Court set aside trespass notice

11 Court throws out criminal negligence charge against boom truck operator laid after his guilty plea to OHSA charge: Campbell Boom truck toppled over, worker died Police and MOL investigated Operator pleaded guilty to OHSA charge Five months later, policy laid criminal negligence charge Court threw out criminal negligence charge: unfairness

12 Threats of violence, one day after sensitivity training, get worker fired for cause: TTC 25-year worker: If anything ever happened, like losing my job, I d have no problem coming in here and shooting them One day after sensitivity training Disciplinary history re anger Fired for cause

13 Church defeats lawsuit by volunteer: dueling OHS experts testimony considered: Baltadjian Parishioner volunteered with painting Fell off stepladder 2 OHS experts testified: OHSA standards considered Action dismissed

14 Employer and supervisor failed to obtain and review proper operating manual, convicted under OHSA: Alpa Lumber Mills 18-inch shard of wood ejected from rip saw Court: employer and supervisor failed to obtain operator s manual Therefore they did not know inherent risks Convicted of OHSA charges

15 Ontario employers are not, as a general rule, answerable under OHSA to employees for harassment by fellow employees or managers: George Brown College Employee alleged manager spread rumours, unfairly evaluated her Arbitrator: absent from OHSA is any suggestion employers are answerable to employees for harassment by coworkers or managers

16 Industrial safety specialist properly fired for lying on security application: Aboagye v. Atomic Energy Industrial safety specialist Misrepresented employment history National security context Fired for cause

17 After being told that she should just quit if she felt unsafe, dismissed employee awarded $15,000 in damages Supervisor at charity Active in OHSA matters Executive director: if you feel unsafe at work, you should just quit. Dismissed Employer must pay damages of approximately $15,000

18 Loader operator entitled to remain in job despite accidents: insufficient warnings and training, decides arbitrator: Columbia Forest Products 40-year employee, 15 years as a loader operator, 8 incidents of damage Employer transferred him to another position Arbitrator returned him to loader operator position: Only involved in 8 incidents Most recent incident 5 years ago Not put on notice that he was viewed as safety risk and his loader operator job in jeopardy Employer did not provide training to address issue Not sufficient evidence that he was safety risk

19 Safety officer, fired after company loses COR certification, wins wrongful dismissal lawsuit: Tipon Company lost COR certification when the safety officer failed to meet certain COR requirements including timely application for external audit Safety officer naively believed that he could complete necessary internal safety audits in time or get an extension. Safety officer had become very ill with an autoimmune disease. Also, he did not get adequate assistance. He had pleaded for help and this plea fell on deaf ears. Wrongfully dismissed

20 Your ugly face : employer s condescending, aggressive, hostile and profane behaviour in one meeting resulted in constructive dismissal. Nurse awarded 24 months in damages: Sweeting Nurse in doctor s office Doctor said, Go! Get out! I am so sick of coming into this office every day and looking at your ugly face. He also pointed at her, shouted at her, accused her of being resistant to change, and used profanity Court decided that although doctor did not intend to dismiss, he did in fact fire her when he told her to Go! Get out! Nurse awarded 24 months compensation

21 Occupationalhealthandsafetylaw.com

22 29 November Thank you Dentons Canada LLP 77 King Street West Suite 400 Toronto, Ontario M5K 0A1 Canada Dentons is the world's largest law firm, delivering quality and value to clients around the globe. Dentons is a leader on the Acritas Global Elite Brand Index, a BTI Client Service 30 Award winner and recognized by prominent business and legal publications for its innovations in client service, including founding Nextlaw Labs and the Nextlaw Global Referral Network. Dentons' polycentric approach and world-class talent challenge the status quo to advance client interests in the communities in which we live and work Dentons. Dentons is a global legal practice providing client services worldwide through its member firms and affiliates. This document is not designed to provide legal or other advice and you should not take, or refrain from taking, action based on its content. We are providing information to you on the basis you agree to keep it confidential. If you give us confidential information but do not instruct or retain us, we may act for another client on any matter to which that confidential information may be relevant. Please see dentons.com for Legal Notices.