Tuesday, May 17, 2011

What does discriminatory action in worker's compensation look like?

I was asked in a meeting last week to give an example of a “discriminatory action” case under the Workers Compensation Act. In the discussion that followed, I realized there was considerable confusion over what that meant.

The word “discrimination” captures the concept of being treated unfairly, or differently, relative to others. The term “discrimination” has a specific meaning in the B.C. Human Rights Code, which prohibits “discrimination” on the basis of race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, or age. “Discriminatory action” under the Workers Compensation Act involves an employer’s retaliatory action against a worker for reason that the worker raised health or safety concerns and is regulated by the WorkSafeBC.

WorkSafeBC receives over two hundred discriminatory action complaints a year. Consider the following cases:

  • A young worker burns her forearm operating a deep fryer in a local kitchen. There are no first aid supplies in the area so she leaves to get medical attention at the local emergency. She gets the treatment she needs and returns to work. She complains to her boss about the lack of first aid supplies. The next week, she finds her shifts have been cut, while everyone else’s shifts remain about the same.

  • A worker has a job delivering and installing appliances. The employer requires home delivery staff to don disposable paper slippers when entering customer’s homes. The work says he is willing to put disposable booties over his work shoes, but refuses to remove his steel toed shoes for safety reasons. The employer insists on his workers removing their shoes when delivering and installing appliances and tells the worker he either complies or he will be fired. The worker refuses and his employment is terminated.

  • A worker is directed by his lead hand to operate a particular piece of equipment. The worker refuses because he has not been trained on how to safely use the equipment in question. The worker, having refused the work, is sent home without pay for the rest of the day.

Making a claim is relatively straight forward. A worker may establish a “basic case” of discriminatory action by providing evidence the employer engaged in “discriminatory action” and the worker engaged in activities under section 151 of the Act, of which the employer was made aware, and there is a connection between the two such that the employer’s actions were in retaliation for the worker’s actions.

Assuming the complaint is within the Board’s authority to address, and that the worker’s evidence on its own establishes a basic case of discriminatory action, a WorkSafeBC prevention officer will contact the employer and share the concern.

In some cases, the prevention officer is able to settle the matter directly between the worker and the employer. In others, the prevention officer will complete an investigation and forward it to the Compliance Section at WorkSafeBC where investigations legal officers will generally first refer the complaint to mediation. If not settled at mediation, the investigations legal officers will then adjudicate the complaint after offering the parties an opportunity to provide submissions and further evidence.

Both the worker and the employer may appeal the decision of the investigations legal officer to the Worker’s Compensation Appeal Tribunal (WCAT).

Claims of employer retaliation against workers for raising health or safety issues may not have a high public profile but they are important. Too often cases like these go unreported. Not only is the employer’s retaliation illegal, it hurts more than the worker. Other workers who observe such actions may be dissuaded from raising similar concerns. Even more critically, the health or safety issues may not be raised or corrected putting workers and other persons in the workplace at greater risk of injury, disease or even death.

For more information on this aspect of worker’s compensation, take a look at the resources on the WorkSafeBC website page on Discrimination Complaints.

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