Employees not protected when reporting hazards: specialist
Rulings identify regulatory ‘no man’s land’ for safety workers, instructor says
A recent court decision has uncovered two major issues in the practice of Occupational Health and Safety (OHS) in Newfoundland and Labrador, says a safety specialist in the province.
Stephen Pike, an instructor with the Access Institute based in St. John’s — and who has trained over 30,000 workers worldwide in access, scaffolding and safety over the past 20 years — says he believes the implications of the decision are “horrendous” and that legislation needs to be changed immediately to protect workers and ensure safety issues are immediately addressed on major construction projects.
The court case Pike is referring to is that of Brian Tucker, a former rescue adviser at the Muskrat Falls construction site in Labrador.
In 2016 Tucker worked with HSE Integrated Ltd., which was under contract to Astaldi Canada — the primary contractor on the Muskrat Falls site — to provide safety services at Muskrat Falls.
Tucker responded to an incident one night in which a worker fell off a scaffold and dislocated his shoulder. As a rescue adviser, Tucker noted serious issues during the rescue operation that included problems with getting the injured worker lowered from the height he was working at, mainly because there were no trained rescue personnel or proper equipment in that area. With an increase of workers expected at the time, he saw a potential safety issue.
Tucker took his concerns to his supervisor and manager. When both failed to address his concerns to his satisfaction, he sent an email to Astaldi project manager Don Delarosbil. Astaldi then addressed the issue by hiring its own trained rescuers for that area.
Tucker’s actions caused problems for HSE Integrated. The company subsequently lost its contract with Astaldi Canada and Tucker was fired.
The matter came before the Newfoundland and Labrador Labour Relations Board, which ruled it did not have the jurisdiction to hear Tucker’s wrongful dismissal complaint because it found that Tucker had failed to report the incident to OHS, and thus he had no protection under the act. Tucker applied to Newfoundland and Labrador Supreme Court to order the labour board to hear his complaint. The court, however,
agreed with the labour board’s ruling.
Tucker had argued he did not report the incident to OHS because it had been addressed by Astaldi and there was then no longer an issue to report. He maintained he still should have been protected from losing his job under the province’s OHS Act.
Pike said the rulings by the board, and subsequently the court, send the wrong message.
“The bigger issue is that this ruling creates a regulatory no man’s land — the period ranging in duration from minutes to months between when a worker identifies a workplace hazard to their employer and the moment that they decide that their employer hasn’t done well enough to mitigate that hazard,” Pike said.
“At that time they are expected, by law, to report the issue to the OHS division of the Department of Government Services. This labour board ruling asserts that then, and only then, is the worker protected against discriminatory action.”
Pike said every OHS policy and training program — particularly those approved and promoted by the regulators and Workplace Newfoundland and Labrador — instruct workers to always take that first step to report unsafe conditions to their supervisors and employers.
“Almost every worker in Newfoundland and Labrador is given the belief that they are protected for identifying and reporting hazards to their employers,” Pike said. “But this ruling proves to them now that they are in a very precarious position. This ruling asserts that workers are only protected when they report the issue to the government.
“Unless workers are going to immediately call the OHS division every time they report a hazard to their employer, they are exposed and unprotected.”
Pike said what further complicates that situation is the fact that the OHS inspections branch does not have the resources to deal with such a reporting situation. That needs to change, he said.
“The other issue uncovered by this case is the need for special legal protections for health and safety practitioners in Newfoundland and Labrador,” Pike said. “Safety advisers are paid to identify hazards, deficiencies, risks and potential issues with their employers/clients. Sometimes the mitigation of those risks can be expensive, time consuming and difficult.
“It sends a horrible message to the health and safety professionals and the workers they are trying to protect in the province. It is wildly ironic that the employer argued successfully that the employee didn’t report the employer to the government and thereby wasn’t protected by discriminatory action by the same employer. The optics are terrible. ‘Don’t rock the boat’ is the message sent.”
Pike said the Occupational Health and Safety Act and Regulations are laws to protect the welfare of workers in the province. Many other rulings in Canada, he said, have asserted that these laws should be generously interpreted, “not rigidly and strictly.”