Occupational Health and Safety Act (OHSA) & Reprisals
An employee recently raised a safety concern in the workplace. Am I now prevented from disciplining the employee because of some new and unrelated misconduct?
No, provided the discipline being imposed has nothing whatsoever to do with the employee having raised a health and safety concern. In such circumstances, the employer must prove to the Ontario Labour Relations Board (OLRB) that health and safety issues were no factor in the decision to impose the new discipline.
An employee initiated a work stoppage for health and safety reasons. The Inspector who investigated ruled that the workplace was perfectly safe. Can I discipline the employee for improperly stopping work?
No. An employee who attempts to assert his rights under the OHSA is protected by the unlawful reprisal provisions of the Act, even if the employee is legitimately mistaken about the possible risks or hazards that prompted the work stoppage.
Can my employee file an OLRB application under s. 50 of the OHSA, even though he’s already filed a grievance under the union collective agreement about the same incident?
The OHSA allows an employee covered by a union collective agreement to file a grievance under the collective agreement, or a section 50 application before the OLRB, but not both. If the grievance has already been referred to arbitration, the OLRB will likely dismiss the section 50 application.
I missed the deadline to file my Response with the OLRB. Can I file it late?
You should still try to file a response with the OLRB, but include a request for a time extension, and provide complete reasons why the deadline was missed. The OLRB seldom extends filing deadlines under its Rules, and needs compelling reasons for granting such an extension. Every possible effort should be made to file the Response within the deadline.
Is mediation mandatory?
While the OLRB strongly encourages parties to participate in mediation, there is no penalty imposed upon a party who chooses not to engage in mediation.
Should I bring witnesses to mediation?
There is no need to bring witnesses to mediation. The Labour Relations Officer mediating the case will not hear evidence from witnesses.
I am not available on the scheduled hearing date. How do I reschedule?
The OLRB will only reschedule a hearing prior to the date upon the consent of all parties. You should contact the employee or their representative, explain the scheduling conflict, and request their consent to reschedule. If they refuse, someone will have to appear before the OLRB on your behalf on the scheduled hearing date and request an adjournment at that time. The OLRB will assess the merits of the rescheduling request and decide whether or not to reschedule the hearing.
Will the OLRB come to my city if I am not in Toronto?
The OLRB only conducts hearings in Toronto. However, the OLRB will conduct all or part of a hearing via Skype, if parties or witnesses reside at a substantial distance from Toronto. Be sure to include a request in your Response that the hearing be conducted via Skype, if you cannot attend in Toronto.
The OLRB ruled against me. There was evidence I could have called, but I did not realize it was important. Can I get a Reconsideration?
The OLRB will usually only reconsider a decision based on new evidence that was not available at the time of the hearing. If the evidence was available, but a party did not realize it was important, the OLRB will likely not reconsider the decision.
Will the Courts overturn an OLRB decision on judicial review if they consider it wrong?
The Courts will only overturn an OLRB decision if they consider it to be unreasonable. Even if the Court might have decided the case differently, the Court can consider an OLRB decision reasonable, even if the Court disagrees with it.
A construction employee has filed a grievance with the OLRB alleging an unlawful reprisal for health and safety reasons. The grievance does not specifically mention the OHSA or section 50 of the Act. Can the Office of the Employer Adviser (OEA) represent me?
Yes, provided the employer has fewer than 50 employees. The grievance does not need to specifically mention the OHSA, as long as the grievance alleges an unlawful reprisal for health and safety reasons.
My non-construction employee has filed a grievance under our collective agreement to be heard by an arbitrator. Can the OEA represent me?
No. The OEA can only represent an employer on an unlawful reprisal complaint before the OLRB.