Complaints about Discriminatory Action Relating

to Occupational Health and Safety

1. What is discriminatory action?
   Discriminatory action includes any act or omission that adversely affects a worker with respect to any term or condition of employment or membership in a union. It refers to actions or omissions by an employer or a union, or by a person acting on behalf of the employer or union. Some examples of discriminatory action include:
• Suspension, layoff, or dismissal
• Demotion or loss of opportunity for promotion
• Transfer of duties
• Change of location of workplace
• Reduction in wages
• Change in working hours
• Coercion or intimidation
• Imposition of any discipline, reprimand, or other penalty
• Discontinuation or elimination of the job of the worker



2. When is discriminatory action not allowed?
   An employer or a union (or a person acting on their behalf) must not take or threaten to take discriminatory action against a worker for:
• Exercising a right or carrying out a duty under the occupational health and safety provisions of the Workers Compensation Act or the Occupational Health and Safety Regulation
• Testifying in any matter, enquiry, or proceeding under the Workers Compensation Act, the Coroners Act, or on an issue related to occupational health and safety
• Giving information about conditions affecting the occupational health and safety of any worker to an employer, another worker, a union representing the worker, or an officer or other person administering the Workers Compensation Act



3. If a worker has a complaint about discriminatory action, what should the worker do?

A worker who believes they have been subjected to discriminatory action (or threatened with discriminatory action) relating to occupational health and safety can phone or write to the nearest office of WorkSafeBC (the WCB). See page 6 for the list of offices. Usually some details about the complaint will be taken on the phone along with a number for a WorkSafeBC officer to reach the worker.

A complaint about discriminatory action can be against either an employer or a union for the reasons given in question 2. For example, a worker who has been disciplined for reporting a safety hazard or for refusing to perform unsafe work can make a complaint to WorkSafeBC.

A worker can also make a complaint if the employer has not paid wages that should be paid relating to occupational health and safety matters. For example, a worker can file a complaint if the employer does not pay the worker while attending occupational health and safety meetings or while taking educational leave as a member of a joint health and safety committee.

4. Can a union worker file a grievance with the union about discriminatory action?

A union worker has the option of filing a grievance with the union about the discriminatory action of the employer, instead of filing a complaint with WorkSafeBC. However, a worker cannot pursue both a grievance with the union and a complaint with WorkSafeBC about the same matter.

5. What happens when a worker makes a complaint to WorkSafeBC?
   Once a worker contacts WorkSafeBC, a WorkSafeBC officer will contact the worker to:
• Discuss details of the complaint
• Answer questions
• Explain the process for dealing with discriminatory actions

After discussion with the worker, the WorkSafeBC officer will decide if the complaint seems to be "in scope" - that is, if it involves a health and safety discriminatory action as described in the Workers Compensation Act. The information provided by the worker must establish that discriminatory action relating to occupational health and safety may have occurred.

Note: In the remaining questions, when the term "employer" is used, it means either the employer or the union, whichever the complaint is against.

6. What happens if the complaint appears to be "in scope"

Once the officer confirms that the complaint appears to be "in scope," the worker may decide to proceed with a formal complaint.

To do this, the worker must file a written complaint. The officer can provide a form for the worker to use, or another written format can be used. The worker must also give written consent for WorkSafeBC to contact the employer.

7. What happens if the complaint appears to be "out of scope"?

"Out of scope" means that the actions are not covered by the discriminatory action sections of the Workers Compensation Act (see question 2). The officer will advise the worker of the reasons the complaint appears to be out of scope. For example, an allegation about sexual, racial, or other discrimination is out of scope.

The worker may then:

• Withdraw the complaint, or
• Pursue the complaint by filing a written application with the Workers' Compensation Appeal Tribunal.


8. When is the employer told about the complaint?

The WorkSafeBC officer will contact the employer when:

• The complaint appears to be "in scope"
• The worker wants to proceed and has filed a written complaint
• The worker has given written consent allowing WorkSafeBC to contact the employer

The officer will explain the purpose of the inquiry and describe the process. The burden of proof is on the employer to show that there has been no discriminatory action or failure to pay wages. The employer can provide the officer with information they feel is relevant to the question of scope and to the inquiry generally.

The employer is required to cooperate fully with the WorkSafeBC officer in the investigation of a discrimination complaint.

9. Is there a time limit for filing a complaint?

If the complaint is about a failure to pay wages as required under the Workers Compensation Act, the worker must file a written complaint within 60 days after the wages became payable. For other complaints of discriminatory action, such as dismissals from work, the worker must file a written complaint within one year after the discriminatory action allegedly occurred. These time limits refer to complaints made in writing.

10. Can a complaint be settled or withdrawn?

Once the WorkSafeBC officer has confirmed through discussions with the worker and the employer that the complaint may be in scope, the officer may investigate the complaint and send this information to the Compliance Section of WorkSafeBC. There, a formal adjudication of the complaint will be made.

Alternatively, the officer may try to help the parties reach a settlement. Settlement discussions are completely voluntary and are conducted on a "without prejudice" basis. This means that nothing said or done with respect to an attempted settlement can be used against either party in the future should a settlement not be reached.

If a settlement cannot be reached or if either the worker or employer does not wish to try to reach a settlement, they may say so. The officer will forward the written complaint, together with any investigation information, to the Compliance Section for adjudication. The worker may also withdraw their complaint at any time.

11. Who ultimately decides if discriminatory action took place?

Case officers of the Compliance Section adjudicate discrimination complaints.

Once a complaint goes to the Compliance Section, it will be reviewed to see if a settlement between the parties is still possible. A mediator may be appointed to discuss this with the parties.

If a mediated settlement is not possible, the complaint will be adjudicated by a case officer or a panel of three case officers. This may occur through an oral hearing, by written submissions from all parties, or by both.

12. How is a complaint decided?

The Workers Compensation Act states the burden of proof is on the employer to prove that discrimination did not occur. This means that once a worker provides sufficient information to indicate discriminatory action may have occurred, it is up to the employer to prove it did not. The employer may choose to participate in the adjudication, but if the employer does not participate, the case officer must proceed with only the information provided by the worker and revealed in the investigation.

The case officer will either dismiss the complaint or decide that discriminatory action took place and issue remedial orders. The case officer will give a written decision in either case.

13. What happens if the case officer finds that discrimination took place?

If the decision is that discriminatory action took place, WorkSafeBC may make an order requiring one or more of the following to occur:

• The employer/union cease the discriminatory action.
• The employer reinstate the worker to his/her former position with the same terms of employment.
• The employer pay back wages.
• The union reinstate the worker's membership.
• The employer/union remove any reprimand or references to the matter in the employer's or union's records on the worker.
• The employer/union pay the reasonable out-of-pocket expenses that the worker incurred as a result of the discriminatory action.
• The employer or union do any other thing the WorkSafeBC considers necessary to secure compliance with the Workers Compensation Act and the regulations.



14. What happens if the case officer finds that discrimination did not take place?

No orders will be issued and the complaint will be dismissed.

15. What can the worker or employer do if they disagree with the decision?

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.

A party subject to an order (for example, to pay wages) may ask WCAT for a "stay of proceedings" until the appeal has been completed. If no stay is requested, or if a stay is not granted, the orders must be complied with immediately, awaiting the outcome of the appeal.

16. What help is available for workers and employers?

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 the Employers' Advisers office, an employer association, a consultant, or a lawyer.

Workers' Advisers Office

Employers' Advisers Office

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

WorkSafeBC Offices