Employer reprisals against workers attempting to exercise their health and safety rights remains a top concern according to a new, soon-to-be published study.
 
Despite a few improvements to the complaints process some eight years ago, workers are still being fired illegally for exercising health and safety rights, rarely do they get their jobs back, and rarer still do employers suffer legal consequences.
 
"What we heard is a pretty strong indication the system designed to protect workers who advocate for safer, healthier work is broken,” says Andy King, McMaster University-based researcher and lead author of the study funded by a grant from the Prevention Branch of the Ontario Ministry of Labour (Ministry).

“Most workers went into the process looking for compensation and expecting their employer would be punished,” adds King. “Some reported being satisfied with the financial outcome. All, however, were extremely disappointed that despite clearly breaking the law the employer suffered no legal consequences. Many also reported frustration with the fact the initial health concern was never resolved.”

Consequences for workers

Under Ontario’s Occupational Health and Safety Act (the Act) section 50 prohibits an employer or supervisor from disciplining or threatening a worker who has acted in accordance with the Act or sought its enforcement. A worker who suffers a reprisal may file a grievance if covered by a collective agreement or seek to have their complaint heard by the Ontario Labour Relations Board (OLRB).
 
King worked with Wayne Lewchuk, economics and labour studies professor and other researchers from McMaster University, along with the Labour OHCOW Academic Research Collaboration (LOARC), an association of worker health and safety representatives, practitioners and researchers working to support effective worker participation in health and safety. Together, they documented the first-hand reprisal experiences of 25 workers and reviewed almost 700 of the 1,200 plus OLRB reprisal cases filed between 2007 and 2017.
 
Just four of the 25 interviewed kept their job as part of the resolution of the reprisal. All four were union members and three of them were health and safety representatives. Notably, two representatives discontinued their roles as a result of their experiences, while a third reported ongoing harassment from their employer.
 
The review of OLRB files painted a similar picture of disregard for occupational health and safety law and significant consequences for workers. The files showed workers were punished for:

• reporting hazards (67 per cent of OLRB cases)
• exercising their rights as a health and safety rep or contacting a Ministry inspector (43 per cent)
• complaining about harassment (31 per cent)
• refusing unsafe work (28 per cent)
• suffering a work-related injury (10 per cent), and
• needing accommodation (6 per cent).

“These workers had done what the law encouraged them to do in reporting safety concerns or exercising their obligations as a health and safety representative,” explains King. “For this, they received a pink slip and, on average, a $5,000 settlement.” 

No consequences for employers

Financial settlements were common and mostly agreed to without an OLRB hearing. This was not shocking to researchers considering workers interviewed for this study, including union members, all reported pressure to settle their case.
 
Again, beyond cutting a cheque for a few thousand dollars, employers faced no further consequences for breaking the law. No formal charges, no investigation and no public disclosure of wrongdoing.
 
Even Ministry health and safety inspectors, whose job it is to enforce health and safety law, have no authority to deal with employers who punish workers. Ministry policy dictates they only investigate the health and safety concerns that may have led to the reprisal complaint.  
 
The findings suggest even calling an inspector to investigate a health and safety concern can lead to reprisal. This was found to be the case in nearly 30 per cent of the OLRB cases reviewed.

Fixing a broken system

“The first-hand stories we heard from affected workers and the information gathered from the OLRB data suggests without a better system of enforcement and significant deterrents, workers bold enough to exercise their occupational heath and safety rights are at risk of being punished rather than applauded,” says King.
 
In December 2010, a government-appointed Expert Panel reviewing Ontario’s occupational health and safety system acknowledged workers needed improved protection from reprisals, greater support for those affected and speedier handling of complaints.  In part they came to this conclusion based on research supported by the Ontario Federation of Labour.
 
In response to Expert Panel recommendations, the Office of the Worker Adviser realized an expanded mandate to represent unorganized workers who have suffered a reprisal. (Unorganized workers can also seek help through the Workers' Health and Safety Legal Clinic.)

However, Expert Panel recommendations did not include many others submitted to one of their key working groups and in answer to their question, “Is the reprisal protection currently provided sufficient to protect workers who raise health and safety concerns or exercise their rights under the legislation?”
 
So for instance, the Expert Panel ignored a recommendation to enact reprisal protections similar to Manitoba legislation. Under Manitoba’s Workplace Safety and Health Act Ministry inspectors have the ability to redress reprisal complaints immediately without subjecting workers to complex legal systems. These inspectors are a specialized group within the Ministry and are supported with appropriate training in order to make informed decisions. First step appeals are handled by a Director’s decision, with second step appeals only going to the Manitoba Labour Board. Also critical are the specific references to the ways workers exercise their rights, including the performance of duties for joint health and safety committee members and representatives.
 
In addition to the pending release of their final study, LOARC/McMaster researchers are also currently developing a Workers’ Guide to help navigate the reprisal system in Ontario and a way forward to secure a more just system.  
 
Other related resources:
Health and Safety Representation: Writing Workers Back In (LOARC)
WHSC Health and Safety Rights Posters

To learn more: 
Contact the authors: kingan@mcmaster.ca
Visit WHSC: www.whsc.on.ca 
Email WHSC: contactus@whsc.on.ca