LEGAL RIGHTS BULLETIN: Retaliation under the OHSA

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The Occupational Health and Safety Act (OHSA) sets out the rights and obligations of employers and workers with respect to workplace safety. It also defines the processes for enforcing the law in the event of non-compliance. It applies to provincially regulated workers.

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The OHSA provides that no employer or person acting on behalf of an employer shall intimidate, terminate or penalize an employee or threaten to do so because the employee acted in accordance with the OHSA or requested its application. If an employer does any of these things, it is called “unlawful retaliation” and a worker is entitled to various remedies.

Two important protected activities under OSHA are refusing unsafe work and filing a complaint of workplace harassment or violence.

For example, your employer cannot suspend you for refusing to operate a faulty machine or perform a job without adequate personal protective equipment. An employer also cannot fire (or threaten to fire) your job for complaining of harassment such as name calling or sexual harassment.

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If a worker believes they have been retaliated against under OSHA, they can file a complaint with the Ontario Labor Relations Board (OLRB). The employer bears the burden of proving that there was no reprisal.

A complaint to the CRTO must be filed as soon as possible since the Commission can dismiss a complaint for “undue delay”. The CRTO acts very quickly on retaliatory claims. If the parties are unable to settle the matter through mediation, it may take as little as six weeks before a hearing or consultation.

When the OLRC finds retaliation, it has the power to order remedies that are “just and reasonable in all the circumstances.” This includes the reinstatement order, legal dismissal and severance pay, damages for emotional pain and suffering, and broader financial compensation to put the worker back in the position they would have been in without retaliation. This compensation includes wages for direct and foreseeable loss of income as well as expenses incurred to find a new job.

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Many of the worker protections and employer obligations found in OSHA are also covered by common law and other statutes such as the Human Rights Code or the Employment Standards Act. Sometimes it is beneficial to deal with the matter under a different law or through a civil court or the Human Rights Tribunal of Ontario.

Therefore, we recommend that workers receive legal advice so that a lawyer can advise them on all options and help choose the most appropriate forum.

At CKLC, we advise and represent individuals in the event of reprisals under the OHSA. If your case is well founded, your household income is low and you live in our catchment area, the legal clinic may be able to represent you. If your family income is not low enough to qualify for our services, we will refer you to the private bar.

Travis McKay, CKLC labor lawyer (www.cklc.ca, 519-351-6771)

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