January 19, 2006

Health and Safety

Reporting unsafe work conditions

PETER KENTER

correspondent

TORONTO

Ontario workers who report unsafe working conditions to the authorities have the benefit of protection from any reprisals from employers.

Bill C-13, An Act to Amend the Criminal Code (Capital Markets Fraud and Evidence-Gathering), which came into force in 2004, makes it a criminal offence for an employer to threaten or retaliate against workers who report workplace wrongdoing, including health and safety infractions. It has been a hot issue in all industries.

But are construction workers benefiting from this protection?

“I would say that the knowledge of so-called whistleblower protection doesn’t extend to most construction workers,” says Robert Blakely, director of Canadian Affairs for the Building and Construction Trades Department, AFL-CIO. “One of the things the government could do is let people know that if you make a disclosure you will be protected.”

Workers who understand their rights may, however, choose not to report unsafe working conditions. “Assuming you’re going to wrap yourself in a cocoon of whistleblower protection, how do you invoke that protection in a transitory industry where your first day on the job is one day closer to being laid off,” asks Blakely. “Who thinks that a whistleblower will be the last person on the job to be laid off?”

John Telford, special representative with the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada agrees that lay-offs could be used to punish whistleblowers. “When I was a business manager with the United Association of Plumbers and Steamfitters, we used to get calls to make third-party complaints about unsafe working conditions. There’s no doubt they’re worried about being part of the first round of lay-offs.”

Julie Thibault, a lawyer specializing in employment and labour law at the Toronto office of Stikeman Elliott LLP says she hasn’t heard of any cases involving workers using whistleblower protection in Ontario over health and safety issues. Even if such cases aren’t common, however, it’s possible that employers are changing their policies to encourage whistleblowing at the company level. Thibault recommends that employers develop a whistleblowing policy which sets out a mechanism for workers to report perceived offences to their employer, or a third party service provider.

“Most managers are unaware of the legislative prohibitions against reprisal actions under the Criminal Code and employment-related legislation, including the Employment Standards Act, 2000, the Human Rights Code and the Occupational Health and Safety Act,” says Thibault.

“Managers need to clearly understand what actions would be considered retaliatory, the illegality of such actions under the Criminal Code and most employment-related legislation and the potential penalties for taking retaliatory actions.”

Thibault notes that employers are also accountable for reprisals against workers who report conditions they believe to be unsafe—even if the allegations are disproved.

“The protection extends to employees whose belief is ultimately wrong,” says Thibault.

“On its face, section 425.1 of the Criminal Code does not limit the protection to ‘reasonable belief,’ however, we hope that courts will impose such limitation to discourage employees from making false allegations.”

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