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Policies Workers Compensation Act
Policies Workers Compensation Act Part 3 Division 6
Policy Item D6-150/151/152-1
RE: Discriminatory Actions/ Failure to Pay Wages - Scope
BACKGROUND
1. Explanatory Notes
Workers have a right to complain to the Board regarding:
- "discriminatory action" by their employer or union; or
- the failure by their employer to pay wages required by Part 3 or the regulations.
"Discriminatory action" includes any act or omission by an employer or union, or a person acting on behalf of an employer or union, that adversely affects a worker with respect to any term or condition of employment, or of membership in a union.
The Act defines "discriminatory action" by including within it certain matters. The phrase could also include other matters that normally fall within the meaning of "discrimination". However, the Act only provides rights for a worker when the "discriminatory action" relates to the matters outlined in section 151.
Section 152 describes how a worker, who considers that the worker's employer or union has taken, or threatened to take, discriminatory action against the worker or has failed to pay the wages required by Part 3 or the regulations, may make a complaint to the Board. It includes the time limits within which the complaint must be made.
2. The Act
Section 150:
(1) For the purposes of this Division, "discriminatory action" includes any act or omission by an employer or union, or a person acting on behalf of an employer or union, that adversely affects a worker with respect to any term or condition of employment, or of membership in a union.
(2) Without restricting subsection (1), discriminatory action includes
(a) suspension, lay-off or dismissal,
(b) demotion or loss of opportunity for promotion,
(c) transfer of duties, change of location of workplace, reduction in wages or change in working hours,
(d) coercion or intimidation,
(e) imposition of any discipline, reprimand or other penalty, and
(f) the discontinuation or elimination of the job of the worker.
Section 151:
An employer or union, or a person acting on behalf of an employer or union, must not take or threaten discriminatory action against a worker
(a) for exercising any right or carrying out any duty in accordance with this Part, the regulations or an applicable order,
(b) for the reason that the worker has testified or is about to testify in any matter, inquiry or proceeding under this Act or the Coroners Act on an issue related to occupational health and safety or occupational environment, or
(c) for the reason that the worker has given any information regarding conditions affecting the occupational health or safety or occupational environment of that worker or any other worker to
(i) an employer or person acting on behalf of an employer,
(ii) another worker or a union representing a worker, or
(iii) an officer or any other person concerned with the administration of this Part.
Section 152:
(1) A worker who considers that
(a) an employer or union, or a person acting on behalf of an employer or union, has taken, or threatened to take, discriminatory action against the worker contrary to section 151, or
(b) an employer has failed to pay wages to the worker as required by this Part or the regulations
may have the matter dealt with through the grievance procedure under a collective agreement, if any, or by complaint in accordance with this Division.
(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.
(3) In dealing with a matter referred to in subsection (1), whether under a collective agreement or by complaint to the Board, the burden of proving that there has been no such contravention is on the employer or the union, as applicable.
POLICY
Section 152 applies to a failure of the employer to pay wages to the worker as required by the Part.
Some sections do not use the term "wages", but require the worker to be paid for lost time, notably:
- 134(2) (time off work by members of joint committees);
- 135(3) (educational leave for committee members - section 152 only applies to the payment of wages, not other costs such as travel expenses);
- 182(4) (worker accompanying inspection); and
- 192(1) (lay off resulting from stop work order).
As the payments under these sections are in substances "wages", a failure to pay them may be remedied by a complaint under section 152.
PRACTICE
There is no PRACTICE for this Item.
| EFFECTIVE DATE: | July 1, 2003 |
| AUTHORITY: | ss.150, 151, and 152 Workers Compensation Act |
| CROSS REFERENCES: | |
| HISTORY: | Item developed to implement the Workers Compensation (Occupational Health and Safety) Act, 1998, effective October 1, 1999. Effective July 1, 2003 minor changes made to strike out references to sections 147 and 148, as these sections were never proclaimed into effect. |
| APPLICATION: |
Policy Item D6-153-1
RE: Discriminatory Actions/ Failure to Pay Wages - Investigation of Complaint
BACKGROUND
1. Explanatory Notes
Upon receipt of a complaint, the Board must immediately inquire into the matter.
In dealing with a matter regarding discriminatory action, the burden of proving there has been no such contravention is on the employer or the union, as applicable.
2. The Act
Section 153(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.
POLICY
When the Board receives a complaint from a worker within the time frame allowed by section 152(2), the Board will, where further information is needed, carry out an initial inquiry to establish the basic facts alleged by the worker and to determine whether, if accurate, they fall within the terms of section 152. Inquiry will also be made as to what remedy the worker is seeking.
Copies of documents supplied by the worker, as well as the results of any Board inquiry, will be provided to the employer or union against whom the complaint is made. The employer or union will then be given time to meet its onus under section 152(3) of proving that no contravention of the Act or regulations took place and to comment on the remedy proposed by the worker. The worker will be provided with a copy of the Board's investigation as well as any response to the complaint by the employer or union, and given an opportunity to respond.
Further inquiries by the Board may then be made, as well as exchanges of submissions and information that may be required by the rules of natural justice. An oral hearing is not required, but may be held if the Board considers it necessary to properly decide a complaint.
The worker may withdraw a complaint at any time, settle the dispute privately with the employer or union, or pursue alternative remedies under a collective agreement.
The worker cannot pursue both a grievance under a collective agreement and a complaint to the Board regarding the same alleged discriminatory action or failure to pay wages. The worker is required to elect between the two processes.
If the worker elects to pursue a grievance under a collective agreement, but the union decides not to pursue the grievance, the worker may revoke his or her election within 30 days of the union's decision and pursue a complaint to the Board. The complaint must, however, still be made within one year of the action considered to be discriminatory or within 60 days after the wages became payable.
PRACTICE
The reviewing officer will consider granting an oral hearing when:
- there is a significant issue of credibility;
- there is evidence that must be presented orally;
- the decision to be reviewed raises an issue of general significance; or
- there are other grounds for having an oral hearing.
| EFFECTIVE DATE: | October 1, 1999 |
| AUTHORITY: | s.153(1), Workers Compensation Act |
| CROSS REFERENCES: | |
| HISTORY: | |
| APPLICATION: |
Policy Item D6-153-2
RE: Discriminatory Actions/ Failure to Pay Wages - Remedies
BACKGROUND
1. Explanatory Notes
Section 153(2) sets out the remedies that the Board may order if the Board, after investigation, determines that there has been discriminatory action or a failure to pay wages.
2. The Act
Section 153(2):
If the board determines that the contravention occurred, the board may make an order requiring one or more of the following:
(a) that the employer or union cease the discriminatory action;
(b) that the employer reinstate the worker to his or her former employment under the same terms and conditions under which the worker was formerly employed;
(c) that the employer pay, by a specified date, the wages required to be paid by this Part or the regulations;
(d) that the union reinstate the membership of the worker in the union;
(e) that any reprimand or other references to the matter in the employer's or union's records on the worker be removed;
(f) that the employer or the union pay the reasonable out of pocket expenses incurred by the worker by reason of the discriminatory action;
(g) that the employer or the union do any other thing that the board considers necessary to secure compliance with this Part and the regulations.
POLICY
(a) Object of awarding remedies
The Board's object in exercising these powers is, as far as is practicable, to put the worker in the same position as the worker would have been if the discriminatory action or the failure to pay wages had not occurred. This may involve measuring not only the worker's actual loss, but determining whether there were any measures the worker could have reasonably taken to reduce or eliminate that loss.
(b) Factors considered in awarding remedies
The factors considered in determining the worker's loss include:
- whether the worker has tried to eliminate or reduce the loss and, if the worker has not done so, whether it would have been reasonable for the worker to have tried;
- any collateral benefits the worker has received from the employer (collateral benefits from a source other than the employer, such as employment insurance and private insurance benefits, are not to be considered); and
- other circumstances affecting the worker's loss that arise independently of the worker's conduct after the discriminatory action or failure to pay wages has occurred, for example, the closure of the place of employment.
(c) Explanation of Specific Remedies
Reinstatement to employment
The Board may order reinstatement to employment retroactive to when the discriminatory action occurred.
Payment of wages
The Board may make orders with respect to payment of wages in a variety of circumstances. These include:
- an order for reinstatement that requires the employer to pay back wages, reinstate benefits retroactively and perform other incidental acts. The authority to do this is found in section 153(2)(b);
- an order that requires the employer to pay, by a specified date, the wages required to be paid under Part 3 or the regulations. The authority to do this is found in section 153(2)(c); and
- an order that requires an employer to reimburse the loss of pay where the discriminatory action involved the employer reducing the worker's pay. The authority to do this is found in section 153(2)(g).
The wages, salaries and other employment benefits covered by these provisions are those falling within the definition of "wages" in the Employment Standards Act. This definition does not include every payment or benefit that workers receive as a result of their employment.
Expenses
The Board has discretion to order the employer or union to pay reasonable out-of-pocket expenses incurred by the worker by reason of the discriminatory action.
Since the Board carries out the initial inquiry that is necessary to establish the basic facts of the worker's complaint, the worker does not need to incur costs in making a complaint. If the worker feels that a particular inquiry is needed, he or she can request the Board to do this.
The employer or union will meet their own costs of proving that no contravention of the Act took place and responding to any material supplied by the Board or arising out of the Board's inquiry.
Where a complaint is upheld, the Board will not normally make orders that the employer or union pay legal or other costs incurred by the worker in order to pursue the complaint. Similarly, where the complaint is not upheld, the Board will not normally order the worker to pay the legal and other costs of the employer or union. Such orders may be made under section 100 of the Act in exceptional situations. These include where there has been flagrant abuse by the employer, worker or union of their rights and responsibilities under the Act and regulations.
(d) Other action by the employer or union
The Board's authority to award remedies under section 153(2) extends only to discriminatory action or failure to pay wages as defined by Division 6. It does not apply to other actions that may be taken by an employer or union.
(e) Other action by the Board
These remedies only apply when there has been a formal written complaint by the worker.
However, the Board may use its other enforcement powers, including an administrative penalty under section 196, to address discriminatory actions or failures to pay wages, whether there has been a formal written complaint or not.
PRACTICE
There is no PRACTICE for this Item.
| EFFECTIVE DATE: | October 1, 1999 |
| AUTHORITY: | s. 153(2), Workers Compensation Act |
| CROSS REFERENCES: | See also ss. 100, 106 (Definition of "wages"), Workers Compensation Act |
| HISTORY: | |
| APPLICATION: |
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