Employment Law Essentials: Discriminatory Action Complaints – What employers need to know

When a worker raises a concern about occupational health or safety, employers must take it seriously and not retaliate.

If an employer retaliates against the worker in some way, the worker can file a Discriminatory Action Complaint with WorkSafeBC who can make very serious orders against the employer. It is important that employers understand their obligation to create and continue a safe work environment as well as the right way to deal with Discriminatory Action Complaints to avoid serious consequences.

The Complaint

The WorkSafeBC Occupational Health and Safety Regulations set out various rights and obligations of workers and employers regarding occupational health and safety in the workplace and establish the framework for Discriminatory Action Complaints.

Discriminatory actions include:

1. suspension, lay-off or dismissal,
2. demotion or loss of opportunity for promotion,
3. transfer of duties, or location of workplace, reduction in wages or change in working hours,
4. coercion or intimidation,
5. imposition of any discipline, reprimand or other penalty, and
6. the discontinuation or elimination of the job of the worker.

When Discriminatory Actions are Prohibited

Discriminatory actions must arise in a prohibited circumstance. A common circumstance is where a worker exercises a right or duty in relation to occupational health or safety, such as refusing to perform unsafe work. The Regulations specify that the employer cannot take any discriminatory action as a result of this refusal. If the employer does the worker can make a Discriminatory Action Complaint.

Time Limits

Generally, a Discriminatory Action Complaint must be made in writing within 1 year of the discriminatory conduct. A complaint relating to the failure to pay wages must be made within 60 days of the wages being due.

The Discriminatory Action Complaint

Discriminatory Action Complaints are not like normal WorkSafeBC claims. The Worker need only establish a prima facie case (a case made out on first appearance) that the employer committed or threatened a discriminatory action while the worker was exercising an occupational health and safety right or duty,  and show a causal connection between the two.

Once that is done the onus shifts to the employer to prove that its action against the worker was not discriminatory. This will typically require the employer to establish that it was not motivated to take the action complained of because of the occupational health and safety right or duty exercised by the worker.

The employer’s response to the Complaint must not only be sure to respond to the issues in the Discriminatory Action Complaint but also fully and properly address the legal requirements of the Discriminatory Action Complaint process. Often employers will not appreciate the specific issues that must be addressed in Discriminatory Action Complaints. This is because they are unique and unlike any other claim processes. A proper response to the Complaint is important given the serious orders that WorkSafeBC can make against employers.

Orders Against Employers

There are a host of orders that can be made against employers in Discriminatory Action Complaints. These include orders that:

1. the employer cease the discriminatory action;
2. the employer reinstate the worker;
3. the employer pay the worker the wages in dispute;
4. any reprimand in the employer’s records be removed;
5. the employer pay the worker’s out of pocket;
6. the employer do any other thing that the WorkSafeBC considers necessary.

 Appeals of Discriminatory Action Decisions

Appeals of Discriminatory Action Complaints must be made directly to the Workers’ Compensation Appeal Tribunal within 90 days.

Conclusion

Discriminatory Action Complaints must be taken very seriously by employers. WorkSafeBC takes these complaints very seriously. The broad powers that WorkSafeBC has in making orders against employers requires that employers take all necessary steps to resolve these complaints and, if not resolved, to properly and fully respond to them. Given the unique nature of Discriminatory Action Complaints it is important for employers to seek legal advice early.

EKB’s Employment Law Team has extensive experience in WorkSafeBC Discriminatory Action Complaints.