The question often arises as to whether occupational health and safety legislation in an employee's home province protects him or her when temporarily working in another province. According to one recent Ontario Labour Relations Board decision, in some cases the answer can be "yes".
The employee was hired in Ontario, where he lived, in September 2013. During his first year of employment, he worked for the employer in both British Columbia and Ontario. In February 2015, he was temporarily assigned to work in B.C. for about three weeks as a Warehouse Supervisor. While there, he raised a number of safety complaints relating to forklifts (which he said were operated by untrained employees at high speeds), the lack of first aid kits, obstruction of emergency exits, black ice and other hazardous conditions. The employee said that his efforts to have his concerns dealt with were unsuccessful.
Shortly after returning to Ontario, the company terminated his employment. The employee then filed a reprisal complaint under the Ontario Occupational Health and Safety Act claiming that he was fired for seeking the enforcement of the Ontario OHSA. The employer objected, arguing that the safety issues related to compliance with B.C. – not Ontario – safety laws, and that the Ontario OHSA protected only against retaliation for asserting violations of the Ontario OHSA.
The OLRB stated:
"However, Mr. Escudero, as an employee of the responding party permanently based in Ontario, had the right, when he was temporarily assigned by the responding party to a workplace located in Prince George, to require the responding party to ensure that every precaution reasonable in the circumstances had been taken to protect him. That right existed independently of the substance of any applicable health and safety standard established by the legislature of British Columbia. Simply put, at all times Mr. Escudero had the right to require the responding party to satisfy the statutory obligation established by section 25(2)(h) of the [Ontario OHSA]. Mr. Escudero states that he requested of the responding party that it do so, and that his employment was terminated shortly thereafter. Mr. Escudero claims that his loss of employment was a consequence of the request he made of the responding party to ensure that it take reasonable precautions to protect him. If a link between the latter request and the reason for his termination from employment is established, section 50(1) of the Act provides the Board with the authority to remedy the situation."
As such, the OLRB had authority to adjudicate the reprisal complaint under the Ontario OHSA.
Escudero v Diversified Transportation Ltd./Pacific Western Group of Companies, 2015 CanLII 50878 (ON LRB)
For more information, visit our Occupational Health & Safety Law blog at www.occupationalhealthandsafetylaw.com
About Dentons
Dentons is a global firm driven to provide you with the competitive edge in an increasingly complex and interconnected marketplace. We were formed by the March 2013 combination of international law firm Salans LLP, Canadian law firm Fraser Milner Casgrain LLP (FMC) and international law firm SNR Denton.
Dentons is built on the solid foundations of three highly regarded law firms. Each built its outstanding reputation and valued clientele by responding to the local, regional and national needs of a broad spectrum of clients of all sizes – individuals; entrepreneurs; small businesses and start-ups; local, regional and national governments and government agencies; and mid-sized and larger private and public corporations, including international and global entities.
Now clients benefit from more than 2,500 lawyers and professionals in 79 locations in 52 countries across Africa, Asia Pacific, Canada, Central Asia, Europe, the Middle East, Russia and the CIS, the UK and the US who are committed to challenging the status quo to offer creative, actionable business and legal solutions.
Learn more at www.dentons.com
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Specific Questions relating to this article should be addressed directly to the author.