Supervisors and safety professionals have often told me that
they fear being personally charged under the Occupational
Health and Safety Act. Now, a human rights tribunal has
decided that an employee's generalized anxiety disorder was
caused by such a fear.
The employee was a "Supervisor, Regulated Substances,
Asbestos" with the Hamilton-Wentworth District School
Board. In the fall of 2001, she developed a generalized
anxiety disorder as a reaction to the "highly stressful nature
of her job, and her fear that, in making a mistake about asbestos
removal, she could be held personally liable for a breach of the
Occupational Health and Safety Act . . ."
According to the Human Rights Tribunal of Ontario, the employee
testified that "the Ministry of Labour was critical of the
[school board's] handling of its asbestos removal projects and
that she, as the supervisor of these projects, was personally
threatened with a substantial fine."
She went off work due to the anxiety. Medical evidence
showed that she could not work in any position involving liability
for health and safety issues. She asked to return to work in
a position that did not involve any risk of OHSA liability.
The Tribunal decided that there were other positions to which
the school board could have returned the employee that did not
involve potential OHSA liability. Because the school board
did not return her to such a position, it had breached its duty to
accommodate. See my colleague,
Catherine Coulter's article about the significant damages
(almost 10 years' income) awarded to the employee.
The case is an interesting read for safety professionals, and
perhaps a reminder to employers to provide sufficient training to
ensure that their supervisors and safety professionals can sleep
well at night without being nagged by fears of personal charges or
liability under the Occupational Health and Safety
Fair v. Hamilton-Wentworth District School Board2012 HRTO
350 (CanLII) (decision that employer breached duty to accommodate)
and 2013 HRTO 440 (CanLII) (decision awarding
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On Thursday, September 22, 2016, Dentons hosted a panel discussion about the management of liabilities and risks associated with environmental crises, including potential liabilities for directors and officers and provided insight into risk and liability techniques associated with environmental crisis management.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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