The Occupational Health and Safety Act (OHSA) stipulates that employers have a duty to protect their employees from health and safety hazards at workplace. In addition, the employees have the right to raise to their employer their concerns regarding such hazards. If an employer punishes an employee for asking about their rights under the OHSA or complaining about health and safety concerns, it will be an unlawful reprisal and the employer may be sanctioned as a result. Especially during the COVID-19 period, it is important for employees to understand their rights under the OHSA and available remedies if they are reprised by their employer.
Complaint to the Ontario Labour Relations Board (OLRB)
According to section 50 of the OHSA, an employer is prohibited from punishing its employee for raising health and safety concerns at work. If an employee has been adversely affected such as being disciplined, intimidated, denied a bonus or benefit, transferred, terminated, or discriminated against in any way for raising a health and safety issue, the employee may be able to bring a complaint to the OLRB.
An Extra Step for Unionized Workers
Generally, if the employee is a member of a union, they should talk to the union representative first. Then the union can decide how to tackle the employee’s issue. If an complaint is necessary, the union representative may be able to help with filing the complaint.
After Filing the Complaint
After the employee makes a complaint to the OLRB, they will first need to work with a Labour Relations Officer to see if they can reach a mutually agreed solution with their employer. If this fails, the employee may then go to consultation or hearing.
A consultation is less formal than a hearing. During the consultation, the Vice-Chair will ask questions about the incident. Then the Vice-Chair makes decisions at the OLRB.
On the other hand, for a hearing, the complainant will be able to make statements, bring witnesses, and question the employer’s witnesses.
Documentation and Witnesses
Evidence plays an important role in consultations and hearings. The complainant can present documents such as the employment contract, their correspondence with their employer and pictures reflecting unsafe conditions at work. The complainant can also bring witnesses to tell the Board what they heard and saw about the incident.
Before the hearing or consultation, the complainant should review their claim and consider what are the important facts that they should focus on, and how their documentation and witnesses can corroborate those facts.
Additional Matter to be Mindful About
The hearing process can be complicated and thus difficult to navigate. It should be noted that although the OLRB does not charge a fee for the hearing, if a complainant loses, they may have to pay the employer back for what they spent on this process. This could include their lawyer’s fees, which can be expensive.
Therefore, especially for non-unionized employees, it is advisable that they consult a lawyer before filing a complaint to the OLRB. If you are experiencing workplace reprisal issues, Toronto employment lawyer, Stacey ball can help you determine your legal options. Please call us at 416-921-7997, extension 227.