Employers have many obligations under the British Columbia Workers Compensation Act (the “Act”) and the related WorkSafeBC Occupational Health and Safety Regulation (the “Regulation”). These obligations include providing a safe workplace, establishing a valid occupational health and safety program, reporting injuries to WorkSafeBC and investigating incidents where workers are injured or equipment is damaged.
Another very important obligation that an employer has, is to NOT take discriminatory or retaliatory action against a worker for:
- raising a health or safety issue
- exercising or carrying out a duty under the occupational health and safety provisions of the Act or the Regulation
- testifying in any matter, inquiry or proceeding under the Act, the Coroners Act or an issue related to health and safety
Discriminatory Action Complaint
If an employer penalizes, or threatens to penalize a worker for raising a health and safety issue, or for exercising health and safety activities, the worker can submit a discriminatory action complaint. (A unionized worker can choose to file a grievance instead of filing a discriminatory action complaint).
The threshold for WorkSafeBC to accept a discriminatory action complaint, is very low. The worker simply has to show that:
- the worker exercised an occupational health and safety right or duty protected by s. 151 of the Act
- the employer committed, or threatened a discriminatory action prohibited by s. 150 of the Act
- there is a nexus or causal connection between the employer’s action and the worker’s activity
Once WorkSafeBC accepts the complaint as falling within the scope of the discriminatory action complaint provisions, the onus shifts to the employer to prove that the action taken by the employer is not discriminatory because it was not motivated by the exercise of the worker’s occupational health and safety right or duty.
A discriminatory action complaint must be filed within one year of the alleged discriminatory action. If the complaint is about failure to wages, the complaint must be filed within 60 days of the wages becoming payable.
While a complaint of bullying & harassment falls within the scope of a health and safety issue, allegations about sexual, racial or other discrimination, do not fall within the scope of a discriminatory action complaint.
What constitutes Discriminatory Action?
WorkSafeBC considers the following kinds of conduct by the employer to constitute discriminatory action:
- suspending, laying off, or eliminating the worker’s job
- demoting the worker or denying the worker an opportunity for promotion
- changing the worker’s terms and conditions of employment for example by:
- transferring the worker’s duties to someone else
- relocating the worker
- reducing the worker’s wages
- changing the worker’s hours of work
- coercing or intimidating the worker
- disciplining, reprimanding or penalizing the worker
Orders Against Employers
If WorkSafeBC finds that discriminatory action took place, it can order the employer to do one or more of the following:
- cease the discriminatory action
- reinstate the worker to the worker’s former position and former terms of employment
- pay lost wages
- remove any reprimands/references to the matter from its records
- pay any reasonable out of pocket expenses incurred by the worker
- do any other thing that the WorkSafeBC considers necessary to comply with the Act or Regulation
If WorkSafeBc does not find discriminatory action on the part of the employer, it will dismiss the complaint.
The worker or the employer can appeal to the Workers’ Compensation Appeal Tribunal (“WCAT”) within 90 days of WorkSafeBC’s decision.
An employer against whom a discriminatory action is filed, must act promptly to deal with the situation. Because the threshold for filing a discriminatory action complaint is very low, defending against such claims can be quite complicated. It is recommended that employers seek legal advice on how best to proceed if they find themselves faced with a discriminatory action complaint.
Note that a worker can also file a discriminatory action complaint against a union.