Discriminatory Actions Relating to Occupational Health & Safety
If you raise an occupational health and safety issue, refuse unsafe work, carry out any required health and safety related duties, testify in a proceeding about a health and safety matter, or provide others with information about health and safety matters, neither your employer nor your union can take any discriminatory (retaliatory) action against you.
What is a Discriminatory Action?
A discriminatory action includes any act or omission by an employer or union, or a person acting on behalf of an employer or union that negatively affects a term or condition of your employment or your membership in a union.
Examples of discriminatory action include:
- suspension, layoff, or dismissal;
- demotion or loss of opportunity for promotion;
- transfer of duties;
- change of location of workplace;
- reduction in wages;
- change in working hours;
- coercion or intimidation;
- being subjected to any discipline, reprimand or penalty; or
- elimination of the job.
A worker can also make a complaint if an employer fails to pay wages while a worker engages in certain activities relating to occupational health and safety matters, such as attending a health and safety meeting, for example.
Discriminatory action under WorkSafeBC legislation is completely different from discrimination under the Human Rights Code or other legislation. Discriminatory action under WorkSafeBC legislation must be related to an occupational health and safety issue.
What should I do if I have a discriminatory action complaint?
If you think you have experienced discriminatory action relating to occupational health and safety, you should contact the WorkSafeBC office nearest to you. You will be asked to give some of the details of the complaint as well as a telephone number in order for a Prevention Officer to contact you.
Should I go to my union?
If your complaint is against your employer, you should talk to your union. You may have rights under your collective agreement which will offer a better result than that which you would obtain under the discriminatory action process. If your complaint is against your union, you should talk to WorkSafeBC directly.
It is critical to keep in mind the following strict time limits:
- If the complaint is about a discriminatory action such as dismissal, coercion or intimidation, discipline or reprimand, you must file a written complaint with the WorkSafeBC within 1 year of the discriminatory action.
- If the complaint is about a failure to pay wages relating to an occupational health and safety matter, you must file a written complaint with the WorkSafeBC within 60 days after the wages became payable.
- If the WorkSafeBC decides that your employer has not taken a discriminatory action against you or does not owe you wages, you have 90 days to appeal the decision to the Workers’ Compensation Appeal Tribunal (WCAT).
What kind of evidence will I need?
Each case turns on its own facts, but the following types of evidence may be relevant in supporting your claim:
- Witness statements
- Email documentation or documented correspondence
- i.e. hiring letter, letters of reprimand, policy manual information, meeting minutes etc.
- Photographic evidence
- Pay stubs, record of hours, T4, Record of Employment
- All job search information post termination / lay-off . Workers have an obligation to mitigate (lessen) their losses if the employment relationship has ended. This documentary evidence is critical when seeking a period of wage loss for remedy.
What are the options for resolving my complaint?
Complaints can be resolved by mediation or adjudication.
What is Mediation?
Mediation is a meeting between you and your employer and a neutral third party called the mediator. The purpose of mediation is to resolve the complaint outside of the formal decision-making process. Mediation is a confidential, “off the record” process. This means that if there is no settlement and the adjudication goes ahead, nothing said at mediation can be used in the adjudication.
The mediation process is generally faster than the formal adjudication process and provides parties the opportunity to have some say in the outcome of the complaint. As mediation is a confidential process, the parties are able to propose settlement options that may not be available through the formal adjudication process.
If Mediation does not result in settlement, the file will be returned to the Compliance department, and go through the formal adjudication process. No information from Mediation will go forward to the Compliance department.
What is Adjudication?
Once the Compliance department receives the file they will contact the employer first to provide a submission in response to the worker’s original Discriminatory Action Complain form (and any additional evidence provided at that time). The worker will be provided an opportunity to respond to the employer’s submission and provide any additional evidence at that time.
Adjudication is a formal decision making process. The Investigations Legal Officer (ILO) will review and weigh all evidence submitted and issue a written decision regarding whether or not there was a discriminatory action and a decision regarding remedy entitlement. These decisions are appealable to the Workers’ Compensation Appeal Tribunal.
What kind of remedies can be ordered through the adjudication process?
If WorkSafeBC rules that there was a discriminatory action against you, they can order the employer (or in some cases, the union) to:
- stop the discriminatory action;
- reinstate you to your former position;
- remove any reprimand or unfavourable references to the matter, from your employment records;
- pay you for out-of-pocket expenses that you incurred as a result of the discriminatory action;
- pay any loss of wages; and / or
- do anything that WorkSafeBC considers necessary to ensure compliance with the Act and regulations.
Will the Workers’ Advisers Office represent me at Mediation and / or Compliance?
The Worker’s Advisors Office is independent of WorkSafeBC. Under the Workers Compensation Act, the Workers’ Advisers Office may provide a worker with representation only if your claim has merit, or put another way, a reasonable chance of success. The Worker’s Adviser will assess the merits of the case for each step of the process to determine if representation is appropriate.
Other Areas of Law
The Workers’ Advisers Office cannot provide advice or representation on any matters beyond the scope of the Workers Compensation Act. The following is a non-exhaustive list of potential issues that may arise before, during or after mediation. The Workers’ Advisers Office cannot provide advice or representation on these or any other matters that are not related to the Workers Compensation Act.
- Employment Insurance implications if you take a settlement at mediation,
- Income Tax (Canada Revenue Agency) implications if you take a settlement, or the rules about Income Tax,
- Human Rights issues,
- Employment Standards issues,
- Lawsuits for wrongful dismissal,
- Contract Law (i.e. if you signed a release prior to filing the Discriminatory Action complaint), and
- General Release matters (i.e. you may be asked to sign an all encompassing release at the end of mediation).
This factsheet has been prepared for general information purposes. It is not a legal document. Please refer to the Workers Compensation Act and the Occupational Health and Safety Regulation for purposes of interpretation and application of the law.