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Guidelines Workers Compensation Act Part 3 Division 6

G-D6-152 Worker complaints of discriminatory action and failure to pay wages complaints

Issued August 16, 2000; Revised April 2, 2004; Revised February 7, 2006: Revised May 17, 2006

Regulatory excerpt
The discrimination provisions are in Division 6 of Part 3 of the Workers Compensation Act ("Act"). See form #57W1 for excerpts from the Act.

Purpose of guideline
The purpose of this guideline is to provide information to WorkSafeBC prevention officers and workplace parties about how WorkSafeBC handles worker complaints of discriminatory action and failure to pay wages under the Act. It provides an overview of the legislation on discriminatory action, a description of the initial investigation by prevention officers, processes associated with the three possible outcomes of the initial investigation, and information regarding the final adjudication decision by the Compliance Section.

Background
Discrimination provisions provide that workers may not be punished by, or receive retribution from, their employer or union because they have reported an occupational health or safety concern in the workplace, or have otherwise exercised a right or carried out a duty under Part 3 of the Act (the occupational health and safety provisions) or the OHS Regulation. Retribution by an employer could take the form of firing, demotion, suspension, and reduction of wages, or changes in working hours or duties.

Union retribution would involve an adverse effect on a unionized worker's membership in the union. Where workers believe they have been subject to this form of discrimination, the Act provides that the worker may make a written complaint to WorkSafeBC and have a determination made in respect of the issue. A prevention officer will be assigned to meet with the worker to explain the process of how to lodge a complaint under the Act, including the time limits for lodging a complaint.

Where discriminatory action or a failure to pay wages has occurred, WorkSafeBC can order the employer/union to provide a remedy to put the worker in the same position he or she would have been in had the discriminatory action or failure to pay wages not occurred.

Discriminatory action complaints
Section 151 of the Act prohibits an employer or union from taking or threatening to take a discriminatory action against a worker:

For exercising any right or carrying out any duty under the Act or the OHS Regulation (section 151(a)). An example of a right is the right to refuse unsafe work (s. 3.12 OHS Regulation). An example of a duty is reporting the existence of a hazard likely to endanger a worker (s. 3.10 OHS Regulation).
For testifying or being about to testify under the Act or the Coroners Act on an issue related to occupational health and safety or occupational environment (section 151(b)).
For giving information regarding conditions affecting the occupational health or safety or occupational environment of a worker to an employer, another worker, or a union representing a worker, or a WorkSafeBC officer (section 151(c)).

Section 150(1) and (2) define discriminatory action to include any act or omission by an employer or union that adversely affects a worker with respect to any term or condition of employment, or of membership in a union.

Discriminatory actions include

Suspension, layoff or dismissal
Demotion or loss of opportunity for promotion
Transfer of duties, change of location of workplace, reduction in wages or change in working hours
Coercion or intimidation
Imposition of any discipline, reprimand or other penalty
Discontinuation or elimination of the job of the worker

Failure to pay wages complaints
Although the term "wages" is not used in the occupational health and safety provisions of the Act, there are a number of sections that require an employer to pay a worker for lost work time. These are

Section 134(2) (time off work by members of joint committees)
Section 135(3) (educational leave for committee members)
Section 182(4) (worker accompanying an inspection)
Section 192(1) (layoff resulting from stop work order)

Where discriminatory action or a failure to pay wages has occurred, WorkSafeBC can order the employer/union to provide a remedy to put the worker in the same position he would have been in had the discriminatory action or failure to pay wages not occurred.

Filing a grievance under a collective agreement
Union workers have the option of filing a grievance through their union against the employer about the discriminatory action or failure to pay wages.

If the worker chooses to file a grievance under his or her union collective agreement with the employer, the worker cannot simultaneously pursue a complaint with WorkSafeBC regarding the same discriminatory action or failure to pay wages. Nor can a worker pursue a complaint with WorkSafeBC if he/she is displeased with the union grievance outcome.

However, if the union decides not to pursue the grievance, the worker may pursue a discriminatory complaint with WorkSafeBC provided

The worker files their complaint with WorkSafeBC within 30 days of the union's decision not to pursue.
The complaint is still made within one year of the action considered to be discriminatory or within 60 days after the wages became payable (Prevention Manual Item D6-153-1).

Time limits for filing a complaint with WorkSafeBC

Where the complaint is in respect of a discriminatory action, the worker must file a written complaint with WorkSafeBC within one year of the action considered to be discriminatory (section 152(2)(a) Act).
Where the complaint is in respect of a failure to pay wages, the worker must file a written complaint with WorkSafeBC within 60 days after the wages became payable (section 152(2)(b) Act).

An oral complaint does not meet the statutory requirements of the Act and to meet the time limits, the complaint must be made in writing within the specified time frames noted above.

Representation
Workers and employers may have a representative act for them in the discrimination complaint process. The representative may be a lawyer, but need not be, as for example, unionized workers may choose to have a union representative assist them on a complaint against their employer. Where mediation is involved, representation is encouraged, in part, because the mediator cannot offer legal advice to either party.

Initial investigation of the complaint
Initial process
When a worker believes his or her employer/union has subjected him or her to, or threatened him or her with discriminatory action or believes his or her employer has failed to pay them wages, he or she may contact WorkSafeBC, either by telephone or in writing. A prevention officer will contact the worker to initiate an investigation and will

Collect details of the complaint, along with a contact number.
Explain to the worker, and answer any questions about, the requirements under the Act, and the process, including the mediation option, for dealing with complaints.

The prevention officer will, at this initial stage, where the worker wishes to remain anonymous, protect the identity of the worker. However, the worker will also be told that their anonymity and the particulars of the complaint cannot be assured where the worker wishes WorkSafeBC to proceed with an inquiry into the complaint.

The prevention officer will document the information collected from the worker in a consultation record (CR). Where the complaint is against a union, the CR will be documented under the union firm number. The prevention officer will separately retain all relevant information and not attach these to the CR (e.g. written dismissal letter, Record of Employment, pay stubs, employee evaluations, etc.).

Site inspection
If the worker has made reports of unsafe acts or conditions at a workplace, or if a site inspection is necessary to determine if there is an occupational health and safety component to the complaint, the prevention officer may conduct a workplace inspection and issue the appropriate orders in an Inspection Report (IR). Any violations of the Act or the OHS Regulation should be dealt with in accordance with normal inspection protocol. IR's are not to include any particulars regarding the worker's complaint of discriminatory action; however, prevention officers should note reference to any CR's in the "related document" field in the IR. If the IR is relevant to the complaint of discriminatory action, the prevention officer should ensure a copy of the IR is forwarded to the Compliance Section along the other complaint materials.

Prevention officers will not write specific orders under Division 6; issuance of these types of orders is the responsibility of the Compliance Section case officer.

Prevention officer determines if there is a prima facie case of discriminatory action or failure to pay wages
The onus initially lies with the worker to provide sufficient information to indicate that discriminatory action/a failure to pay wages may have occurred. For discriminatory action complaints, the worker will need to provide some evidence which may indicate the employer has adversely affected his or her employment, as set out in section 150 (or in the case of a union, that it has adversely affected his or her membership in the union), as a result of one or more of actions, described in section 151. The same onus of providing "some evidence" lies with the worker in complaints about an employer's failure to pay wages. In both types of complaints, this is referred to as a prima facie case -- a bare outline of a complaint that will prevail until contradicted and overcome by other evidence.

Where a worker makes out a prima facie case, section 152(3) of the Act provides that "...the burden of proving that there has been no such contravention is on the employer or the union, as applicable." The employer/union bears the burden of proving, on a balance of probabilities, that actions it took against the worker were not at all for reason of any of actions protected under section 151. The same onus lies with the employer to rebut a worker's failure to pay wages complaint.

When meeting with the worker, the prevention officer will need to assess whether the worker has made out a prima facie case. This will assist the prevention officer in determining how extensive their inquiries will need to be.

The worker is not required to prove that discriminatory action occurred to make a complaint needing further inquiry by the prevention officer, only that there is some evidence of discriminatory action. For example, in most cases, a complaint describing a dismissal for reporting an occupational health and safety concern (with basic particulars such as dates and locations) will be a sufficient basis for proceeding to the next step in the inquiry process.

Processes based on prevention officer's assessment of whether a prima facie case exists
Following the prevention officer's assessment of whether there is a prima facie case, there are three possible scenarios

A prima facie case of discrimination or failure to pay wages exists - worker wishes to proceed with a complaint
A prima facie case of discrimination or failure to pay wages exists - worker does not wish to proceed with a complaint
Prevention officer considers that the worker has not made a prima facie case.

The following sections explain the processes for these scenarios.

A prima facie case of discrimination or failure to pay wages exists - worker wishes to proceed with a complaint
Where the prevention officer thinks a worker has made a prima facie case, the prevention officer should explain to the worker, and have him or her sign the following:

Worker Consent Form (Form# 57W4)
Election Form (Form# 57W2), where the worker is a union worker, acknowledging that they choose not to pursue their complaint through the grievance process

At this stage, at his or her discretion, a prevention officer may also ask the worker to complete the Worker Complaint of Discriminatory Action Form (Form# 57W1), which includes an information sheet for workers who are filing a complaint of discriminatory action or failure to pay wages, and the Additional Resources List (Appendix A). The worker is to be advised that regardless of when the written complaint form is completed, it must be received by WorkSafeBC within the 60-day or 1-year time limits set out in the Act.

The prevention officer will contact the employer/union when all of the following conditions are met, where applicable:

The prevention officer assesses if the worker has made out a prima facie case for a complaint.
In the case of a union worker, where the worker has signed a Worker Election Form, acknowledging that he or she does not wish to pursue his or her complaint through the grievance process but wishes to pursue his or her complaint with WorkSafeBC.
The worker wishes WorkSafeBC to proceed with investigating the complaint, and has signed the Worker Consent Form authorizing WorkSafeBC to contact the employer/union.

In his or her communications with the employer/union, the prevention officer will

Explain that a complaint of discrimination has been made and the purpose of the investigation
Describe the process
Ask the employer/union to explain what has occurred

The prevention officer will proceed as they would with any other investigation

Interview the company principals
Review the company's records
Request copies of relevant documentation
Interview material witnesses
Conduct a site inspection, as appropriate

The prevention officer should provide the employer with a copy of the Additional Resources List (Appendix A).

The prevention officer should not try to weigh the evidence provided by the employer and determine if the employer has met its burden of proof of showing that there has been no discriminatory action or failure to pay wages. For example, if the employer seems to provide evidence/information which appears to refute the worker's allegation, the prevention officer may not conclude that the worker's prima facie case has no merit. Rather, at the adjudication level, a case officer in the Compliance Section will consider and weigh the employer's/union's response.

Where a worker has made a prima facie complaint and the employer refuses to cooperate with the prevention officer's investigation, the worker's complaint should be sent to the Compliance Section with a note stating that the employer refused to cooperate with the investigation. As a matter of law, where a worker has made out a prima facie case, and where the employer does not respond to that case, the worker's complaint will succeed.

The prevention officer will document the information collected from the employer in a CR and note the discrimination number. The prevention officer will retain all relevant documentation for future forwarding to the Compliance Section.

Where the worker and employer/union express an interest in attempting to resolve the complaint between them, the prevention officer, at his or her discretion, may facilitate settlement discussions.

If the worker and the employer/union can agree upon a settlement of the worker's complaint, the prevention officer will complete the Prevention Officer Settlement Report confirming that the matter has been settled. On completion, this report and any CRs, IRs and prevention officer notes will be forwarded to the Compliance Section. No other documentation should be made or retained, regarding particulars of the settlement discussions.

If the worker or employer cannot agree on a settlement, the prevention officer will advise the worker of their right to submit a written Worker Complaint of Discriminatory Action Form to the Compliance Section of WorkSafeBC and will provide that form to the worker (if this has not already been done).

The prevention officer will then forward the worker's completed Worker Complaint of Discriminatory Action Form, Worker Consent Form and Election Form, copies of any CRs, IRs, and any other relevant documentation (including the prevention officer's notes, with any irrelevant entries severed) to the Compliance Section.

A prima facie case of discrimination or failure to pay wages exists - worker does not wish to proceed with a complaint
Where the prevention officer thinks the worker has made a prima facie case but the worker does not wish to proceed with their complaint at this stage, the prevention officer will

Provide the worker with the Worker Complaint of Discriminatory Action Form, Consent Form and Election Form.
Advise the worker that in the event that they change their decision and decide to pursue their complaint, the Worker Complaint of Discriminatory Action Form must be submitted to WorkSafeBC within the appropriate time limits set out in the Act, and that once WorkSafeBC has received this documentation, confidentiality of the complaint cannot be maintained.
Provide the worker with a copy of the Additional Resources List.

No CR will be created. The prevention officer will document in an internal memo to the Compliance Section the nature and particulars of the worker's complaint, the worker's decision not to proceed at this stage, and the discrimination number, employer's name, and firm number. This memo, along with a copy of the prevention officer's severed notes, will be forwarded to the Compliance Section for retention. The memo will not be placed on the firm's file so as to protect the worker's privacy rights. Any documents collected by the prevention officer from the worker should be returned to the worker.

The Compliance Section will follow up with the worker by sending a letter to the worker confirming his or her decision not to proceed.

Prevention officer considers that the worker has not made a prima facie case
If the prevention officer considers that the worker has not made a prima facie case, they will advise the worker why the complaint does not fall under the Act. For example, an allegation about sexual or racial discrimination, in the absence of any occupational health and safety concern, is not a complaint of discriminatory action under the Act. In this case, the prevention officer will advise the worker should not proceed with the complaint through WorkSafeBC. But if they are not satisfied with this advice they may pursue the complaint for a formal adjudication by filing a Worker Complaint of Discriminatory Action Form (Form 57W1) with the Compliance Section of WorkSafeBC.

The prevention officer will provide the worker with the Worker Complaint of Discriminatory Action Form, Consent Form, Election Form, and the Additional Resources List, and advise the worker that the forms must be submitted to WorkSafeBC within the appropriate time limits set out in the Act. The worker should be advised that once WorkSafeBC has received this documentation, confidentiality of the worker's complaint cannot be maintained.

The prevention officer does not need to create a CR. After discussion with the worker, the prevention officer will document in an internal memo to the Compliance Section, the nature and particulars of the worker's complaint, their opinion that there is no prima facie case, and include a reference to the discrimination number, employer's name, and firm number. This memo, along with a copy of the prevention officer's severed notes, will be forwarded to the Compliance Section for retention. It will not be placed on firm file to protect the worker's privacy rights. Any documents collected by the prevention officer from the worker should be returned to the worker.

Adjudication by the Compliance Section and the external mediation process
Once the Compliance Section receives a written complaint, a case officer will review it to determine whether the worker has made out a prima facie complaint. If so, the case officer will advise the parties of the opportunity to participate in an external mediation process. If both parties agree, an external mediator will be appointed and will attempt to mediate a settlement between the parties.

If a mediated settlement is not possible, a case officer will proceed with the adjudication process. This will include initial file disclosure to both parties, receipt of written submissions from both, and cross disclosure between the parties. Typically this pre-adjudicative disclosure process will take three months before the complaint is ready to be adjudicated, assuming no oral hearing is required.

The case officer will either decide that discriminatory action or failure to pay wages took place and issue remedial orders as outlined in section 153(2) of the Act or dismiss the complaint. The case officer will provide a written decision in either case.

Where discrimination orders are made in a decision against an employer, compliance is required within a specified time frame. If these time frames are not met, the case officer may refer the matter of the non-compliance back to the prevention officer to consider imposing an administrative penalty against the employer.

If an employer, worker, or union disagrees with the decision, they may appeal that decision to the Workers' Compensation Appeal Tribunal (WCAT) within 90 days of the decision. An employer or union against whom an order has been made may ask WCAT for a stay of the order until the appeal has been heard on its merits. If no stay is requested, or if a stay is not granted, the orders must be complied with immediately, pending the outcome of the appeal on the merits.

G-D6-153(1) Determining if a discrimination complaint has been settled

Issued September 28, 2007

Regulatory excerpt
Section 153(1) of the Workers Compensation Act ("Act(") states:

(1) If the Board receives a complaint under section 152 (2), it must immediately inquire into the matter and, if the complaint is not settled or withdrawn, must

(a) determine whether the alleged contravention occurred, and

(b) deliver a written statement of the Board's determination to the worker and to the employer or union, as applicable.

Section 152(2) of the Act states:

(2) A complaint under subsection (1) must be made in writing to the Board,

(a) in the case of a complaint referred to in subsection (1) (a), within 1 year of the action considered to be discriminatory, and

(b) in the case of a complaint referred to in subsection (1) (b), within 60 days after the wages became payable.

Purpose of guideline
This guideline sets out the authority and practice that WorkSafeBC applies in determining whether a discrimination complaint has been "settled" as contemplated under section 153 of the Act.

Background
Section 153(1) requires WorkSafeBC to determine whether an alleged contravention under section 152(2) has occurred, unless the complaint "is not settled or withdrawn."

In some cases, the parties to a discrimination complaint may disagree about whether they, in fact, reached a settlement of the complaint that they agreed was final and binding on them. It then becomes necessary to determine if a final and binding settlement was reached before any further considerations can take place regarding the complaint.

Discussion
Section 113 of the Act sets out WorkSafeBC's jurisdiction with respect to Part 3 of the Act, and provides WorkSafeBC with the exclusive authority to "...inquire into, hear and determine all those matters and questions of fact and law arising or required to be determined..." under Part 3. The broad jurisdiction for WorkSafeBC to make determinations under Part 3 includes the authority to determine whether a discrimination complaint has been settled for the purposes of section 153. Further, as provided in section 113, once WorkSafeBC has determined whether a settlement has been reached, that determination is "...final and conclusive and is not open to question or review in any court" (subject to a judicial review).

Where the parties to a discrimination complaint dispute whether they reached a final and binding settlement of the complaint, it becomes the duty of WorkSafeBC to consider the disputed settlement, together with the circumstances leading to it, and make a final determination of the issue. This practice applies regardless of the complaint settlement process in which the parties engaged, and includes any WorkSafeBC-sponsored mediation or settlement process.

Where WorkSafeBC determines a final and binding settlement was reached by the parties, WorkSafeBC will regard the complaint as having been settled as contemplated by section 153(1) and will take no further action on it. Alternatively, where WorkSafeBC determines a final and binding settlement was not reached, WorkSafeBC will proceed with adjudication of the complaint in accordance with the discrimination provisions under the Act.

APPENDIX A

Additional Resources List

Workers may wish to get help from the worker's union, the Workers' Advisers office, a lawyer, or a consultant.

Employers may wish to get help from an employer association, the Employers' Advisers office, a lawyer, or a consultant.

Workers' Advisers Office
Phone: 604 713-0360
Toll free: 1 800 663-4261
E-mail:

Employers' Advisers Office
Phone: 604 713-0303
Toll free: 1 800 925-2233
E-mail:

Lawyer Referral Service
Phone: 604 687-3221
Toll free: 1 800 663-1919

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Disclaimer: The Worker and Employer Services Division issues Guidelines to help with the application and interpretation of sections of the Occupational Health and Safety Regulation and with divisions of the Workers Compensation Act that relate to health and safety. Guidelines are not intended to provide exclusive interpretations but to assist with compliance. WorkSafeBC ("Workers' Compensation Board of B.C.") does not warrant the accuracy or the completeness of the online version of the Guidelines and neither WorkSafeBC nor its board of directors, employees or agents shall be liable to any persons for any loss or damage of any nature, whether arising out of negligence or otherwise, which may be occasioned as a result of the use of the online version of the Guidelines.