Unlawful Reprisals under the Occupational Health and Safety Act (OHSA)
1. A worker recently raised a safety concern in the workplace. Am I now prevented from disciplining that worker because of some new and unrelated misconduct?
No, as long as the discipline that is being imposed has absolutely nothing to do with the worker having raised a health and safety concern. If the worker makes a section 50 unlawful reprisal complaint, the employer must prove to the Ontario Labour Relations Board (OLRB) that the health and safety issue(s) was (were) not a factor in the decision to impose the new discipline.
2. A worker initiated a work stoppage for health and safety reasons. The MLITSD inspector who investigated the incident ruled that the workplace was perfectly safe. Can I discipline the worker for improperly stopping work?
No. A worker who attempts to assert his/her rights under the OHSA is protected by the unlawful reprisal provisions of the OHSA, even if the worker is legitimately mistaken about the possible risks or hazards that prompted the work stoppage.
3. Can a worker file an unlawful reprisal application with the OLRB under section 50 of the OHSA even though he/she has already filed a grievance under the union collective agreement about the same incident?
Under the OHSA, a worker who is covered by a union collective agreement can 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.
4. 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 a full explanation about why the deadline was missed. As the OLRB rarely extends filing deadlines, compelling reasons must exist for it to do so. Every possible effort should be made to file your response on time.
5. Can I file my response electronically?
Yes. You can access Form A-54 – “Response/Intervention – Application under Section 50 of the Act (Unlawful Reprisal) (Occupational Health and Safety Act)” from the OLRB’s website, where you will also find the instructions for e-filing. You need to download the Form to your computer, complete it using Adobe Acrobat, attach any documents you wish to include with your response, and e-file the package by selecting the “Submit” button at the bottom of the Form. Before submitting your response to the OLRB, however, you need to deliver a copy of the completed Form A-54 (and any other documents you are filing) to the worker, and any affected parties identified in the worker’s application/MLITSD inspector’s referral and/or in your response.
6. Is mediation mandatory?
No. Although the OLRB strongly encourages parties to participate in mediation, a party who chooses not to engage in mediation will not be penalized.
7. Should I bring any witness/witnesses to mediation?
No. There is no need to bring a witness/witnesses to mediation because the Labour Relations Officer who is mediating the case will not hear evidence from any witness/witnesses.
8. I am not available on the scheduled hearing date. How do I reschedule the hearing?
The OLRB will only reschedule a hearing if the request is made prior to the date of the hearing, and with the consent of all parties. If you will not be available on the scheduled hearing date, you should contact the worker or his/her representative, explain why you are unable to participate in the hearing that day, and ask if they will agree to reschedule. Where possible, this should be done well in advance of the hearing date. If the worker is agreeable to having the hearing rescheduled, you need to advise the OLRB’s Registrar of your request in writing. If the worker refuses to have the hearing rescheduled, you must send a written request to the Registrar, in advance of the hearing date, and include an explanation of the scheduling conflict. The worker or his/her representative must be copied on this request. The OLRB will assess the merits of the rescheduling request, and decide whether or not to reschedule the hearing.
9. Will the OLRB come to my city if I am not in Toronto?
The OLRB conducts hearings primarily in Toronto. However, the OLRB may conduct all or part of a hearing electronically if the parties and/or witnesses live a substantial distance from Toronto. If you will not be able to attend a hearing in Toronto, include a request for an electronic hearing in your response.
10. The OLRB decided in favour of the worker. There was evidence I could have provided in the hearing, but I did not realize at the time that it was important. Can I have the decision reconsidered?
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 likely will not reconsider the decision.