Canadian Safety Reporter - sample

February 2019

Focuses on occupational health and safety issues at a strategic level. Designed for employers, HR managers and OHS professionals, it features news, case studies on best practices and practical tips to ensure the safest possible working environment.

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2 Canadian HR Reporter, a Thomson Reuters business 2019 February 2019 | News He worked about 50 hours per week. Less than three months af- ter Knapp started working for Greenbank, he had a conversa- tion with the company's owner about overtime work. After some discussion, the topic shift- ed to some health and safety concerns Knapp had — he was worried about the lack of ven- tilation in the shop, areas for welding that were too cramped, the effects of spray paint used in the shop, and the lack of safety guards on the saws. The day after the conversa- tion, May 5, the owner sent a text to Knapp saying that there was no work for him and he was being laid off. However, Knapp didn't receive the text. On May 7, Knapp contacted the Ontario Ministry of Labour about his health and safety con- cerns at Greenbank's shop. The ministry sent an occupational health and safety inspector and made multiple orders to the company related to Knapp's workplace safety complaints. Employee shocked to learn of layoff That same day, Knapp arrived at the shop and was told about his layoff. His supervisor showed him the text the owner had sent. Knapp was shocked as he wasn't aware the work was drying up and the company was advertis- ing for new welders at the time. He told the supervisor he was going to contact the Ministry of Labour, to which the owner re- sponded by telling him to leave the workplace. Knapp was upset and stressed over the layoff — he thought he had developed a good relation- ship with his supervisor — and was unable to tell his wife for several days. His job search was unsuccessful, so he applied to and was accepted by a retraining program, which began in Sep- tember. However, he remained unemployed and had to borrow money and set up a line of credit to cover his expenses. Knapp filed an application under the Ontario Occupational Health and Safety Act accusing Greenbank of terminating his employment because he raised ing health and safety issues with Greenbank's owner. He initially sought reinstatement to his posi- tion, but later changed his claim to compensation for lost wages for 24 weeks — the period of time from the date of his termi- nation and the date of the hear- ing before the Ontario Labour Relations Board — damages for loss of employment based on one-third of his period of em- ployment with Greenbank, and aggravated damages of $2,500 for the stress and humiliation he suffered because of the com- pany's actions in terminating his employment. The board noted that the act prohibited employers from is- suing discipline or dismissal be- cause an employee acted in com- pliance with the act or sought enforcement of it — such as rais- ing issues with workplace health and safety. The board found that since Greenbank terminated Knapp's employment the day after he raised his health and safety con- cerns, it was natural to link the two. Because of this and the re- quirements of the act, the onus was on Greenbank to provide proof that Knapp's termination was not related to his health and safety complaints. In the hearing, Greenbank accepted the course of events as depicted in Knapp's applica- tion and it was unable to provide an alternate explanation for the termination. The only reason it provided for the termination was when it told Knapp there was a lack of work, but the com- pany was unable to show this was the case, especially since it was advertising for new welders at the time it dismissed Knapp. As a result, the board determined that Knapp's raising of health and safety issues was a factor — probably the main factor — in the decision to terminate his employment, said the board. The board noted that nor- mally, the remedy for a finding of a reprisal under the act was to reinstate the employee. How- ever, since Knapp was no longer seeking reinstatement, it had to evaluate his claim for damages. The board agreed with Knapp's claim of 24 weeks' pay as compensation for lost pay from the date of his dismissal to the hearing date — a total of $25,200. It also allowed Knapp's claim for additional damages for the loss of his job, $4,200. As for aggravated damages, the board found the negative impact of the loss of Knapp's employment — mental stress and shock, fi- nancial hardship, and fruitless job searches leading to Knapp taking a retraining program — along with Greenbank's conduct after informing Knapp of his ter- mination — telling him to leave the premises after he said he would contact the Ministry of Labour —were enough to grant entitlement of $2,500 in aggra- vated damages. "(Knapp) understandably felt betrayed by (Greenbank) and was sufficiently humiliated by the actions of (his supervisor) that he was not able to advise his spouse that he was unemployed for several days," said the board. "(Knapp's) stress and anxiety that would normally follow the loss of employment were cer- tainly aggravated in this case by the cause of that loss." Greenbank was ordered to pay Knapp $31,900 in total dam- ages for wrongful dismissal that was a reprisal for exercising his rights under Ontario's Occupa- tional Health and Safety Act. For more information see: • Knapp v. Greenbank Custom Woodworking Ltd., 2018 CarswellOnt 19023 (Ont. Lab. Rel. Bd.). New hire < pg. 1 Worker fired the day after discussing safety issues Credit: Shutterstock/Stokkete

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