Canadian Safety Reporter - sample

7 Canadian HR Reporter, a Thomson Reuters business 2016 complete a form reporting the incident to the WSIB, and the medical records showed the pain started five months before the worker's claim, not 11, said the tribunal. In addition, the tribu- nal found it unlikely the worker's doctor would refer to an injury that took place less than one year previously as an "old injury" when he discussed the degenera- tive damage in the worker's cer- vical spine. "While we accept that the worker may have been stoic and may have chosen not to com- plain to his co-workers about the pain, there is no evidence that he complained to anyone, including his doctor, from the time the incident happened until 11 months later," said the tribunal. "The worker waited almost a year to seek treatment for his neck, and when he did attend his physician's office, the doctor's medical note does not connect the worker's neck pain symptomology to his workplace incident." The tribunal found on a bal- ance of probabilities that the worker's neck pain symptoms were not related to his workplace incident of the previous year. The worker's appeal was denied. For more information see: • Decision No. 1415/16, 2016 CarswellOnt 11712 (Ont. Work- place Safety & Insurance Ap- peals Trib.). Goncharova's dismissal. How- ever, Goncharova sometimes contacted other managers to try to obtain different interpreta- tions of the safety requirements. She also argued she couldn't wear PPE like earplugs all the time because she wouldn't be able to hear at certain times when it might be necessary, such as when dealing with customers or other situations when she needed to be able to hear. In mid-March 2014, Goncha- rova's new manager resigned, saying she was unable to work with Goncharova and felt she didn't have support of the board. On March 11, Goncharova's em- ployment was terminated. She was given three weeks' pay in lieu of notice and a termination letter that stated some of the rea- sons for dismissal included her inability to work as a team player, smoking in the facility where it was prohibited, and not follow- ing worksite safety procedures by wearing PPE as outlined by the territory's Workers' Com- pensation Board. Goncharova challenged her dismissal, arguing she was wrongfully dismissed. She claimed the society was inconsis- tent in complying with the WCB's requirements for wearing safety gear. She also argued that when she was hired in February 2011, there was no compliance with occupational health and safety regulations and she familiarized herself with the requirements. There were also no employee guidelines to follow initially and when the interim manager gave her new ones following the WCB audit — which stated all build- ings were non-smoking and em- ployees should wear PPE vests at all times — he told her "not to lose sleep" over them. It was only her manager's verbal instruction to wear steel-toed boots and a safety vest that she was aware of, said Goncharova. Goncharova also said she contacted the territory's occu- pational health and safety de- partment and was advised that wearing hard hats at all times wasn't a requirement, only in the construction and metal waste areas of the facility. She also claimed she had been told dif- ferent things by different people when it came to PPE. Goncharova acknowledged that she was aware that any em- ployee who didn't follow the rules could be fired, but she argued the rules were unclear, making them difficult to follow. The court found that the 60- day period in 2013 during which Goncharova's position was being re-evaluated and reviewed served as notice from her employer that there were concerns with her job performance. However, once this period passed without event, Goncharova was entitled to as- sume her performance was satis- factory, said the court. The court noted that the em- ployer in this case was a board of volunteers rather than "an estab- lished corporate entity," so it was understandable if they had less of an understanding of the em- ployment relationship and how things should proceed. However, dismissal was a serious issue re- gardless of the sophistication of the employer, said the court. PPE requirements not clear The court found Goncharova wasn't provided with clear and unequivocal expectations by the society and what the conse- quences would be if she failed to comply. Even though it was men- tioned to her a couple of times that she could be fired for not wearing PPE, it was never formal- ly put in writing or documented by the society. Additionally, the society didn't provide "a comprehensive and complete set of rules, guidelines, and policies, preferably reduced to writing and clearly brought to Ms. Goncharova's attention," said the court. The court found the non-smoking policy was clear and consistent, but she was told different things regarding other policies such as the re- quirement to wear hard hats. However, the court found it was likely Goncharova smoked in the office, given the presence of the ashtray and the smell de- tected by others. The court found the society's safety rules and policies were not clear or consistent enough to determine whether Goncha- rova was or wasn't following them. The only PPE that she was reminded about with any regularity was her hard hat — which she did wear regularly at certain locations where it was clearly required, though not ev- erywhere. The society had the right to make hard hats manda- tory at all times in the facility, regardless of OHS official re- quirements, but it didn't clearly set out this requirement, said the court. The court also found it wasn't logical to wear PPE at all times and locations when, such as Goncharova argued, it wasn't practical — such as earplugs in the office. "I find that the society did not take the necessary steps to en- sure that there was a clear and unequivocal set of rules, guide- lines and/or policies that made it clear what equipment was to be worn at what locations and at what times," said the court. "I find that, to the extent that there was some verbal direction pro- vided, this direction was not en- tirely clear and cannot be relied upon as establishing a standard that Ms. Goncharova can then be viewed as having breached." The court determined the so- ciety did not have just cause to dismiss Goncharova and she was entitled to 14 weeks' reasonable notice. The society was ordered to pay Goncharova 11 weeks' pay in lieu of notice on top of the three weeks she had already re- ceived. For more information see: • Goncharova v. Marsh Lake Waste Society, 2015 YKSM 4 (Yukon Sm. Cl. Ct.). Worker reinstated < pg. 3 Claim < pg. 6 Worker argued she didn't need PPE in the office No evidence of ongoing symptoms since accident News | October 2016 | CSR e employer had the right to make hard hats mandatory at all times, but it didn't clearly set out this requirement

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