Regulatory Appeals – Occupational Health and Safety

Occupational Health and Safety Actions

If you have been inspected by a Provincial Occupational Health and Safety Officer, you could have been issued one or more Orders. In some cases, these or may not be issued correctly, or not be reasonable in the circumstances. These orders are subject to a review or appeal process, but you must file you appeal within certain time limits.

The following order that OHS can issue are.

Compliance orders

Compliance orders note an observed non-compliance and require action by a specific date. In some cases, an order may not be correctly issued or reasonable in the circumstances.

Stop use orders

Officers have authority to stop use of equipment that is observed to be unsafe, or that has the potential, in the officer’s opinion, to seriously injure workers. A stop use order is lifted when the requirements of the order are met.

Stop work orders

When an OHS Officer observes that work is being done in an unhealthy or unsafe manner for workers, the officer may issue a stop work order. This order requires that work be stopped immediately, and may apply to an entire work site, multiple work sites, or to certain activities or areas of a work site. A stop work order is lifted when the requirements of the order are met.

Director’s orders

OHS directors have additional authorities above those of an OHS officer. These include but are not limited to:

• stopping work on a project
• establishing a code of practice
• establishing a health and safety program
• requiring a prime contractor, contractor, owner, employer, supervisor or self-employed person to carry out regular work site inspections, as specified by the director
• filing notice of new projects

Administrative Penalties

Occupational Health and Safety now can issue Administrative Penalties for observed non- compliance. Known as AP’s, this tool is being more frequently used by the Government to achieve compliance. Penalties can reach $10,000 per day for the duration of the non- compliance. Unlike a ticket or charge where you can plead not guilty and have the matter heard before the Courts, an AP is not subject to the same burden of proof and is more difficult to overturn.

In addition to the financial penalty, Occupational Health and Safety “name and shame” companies that have been issued with AP’s on the Government website. This can have a significant impact on a company’s reputation and their ability to attract future work.

Disciplinary Action Complaints

Employees are protected from reprisals or disciplinary action when they are complying with or attempting to enforce their rights, or those of other workers, under the Occupational Health and Safety laws.

The following discriminatory actions under OHS law only apply when they are taken against workers for participating in activities protected by OHS laws. They also do not apply to the reasonable conduct of an employer or supervisor related to managing workers or a work site. Essentially there must be a connection between the disciplinary action and the protected activity and nothing in this section protected employees from the employer’s ability to manage performance.

Discriminatory actions include activities such as adversely affecting promotion opportunities, termination, layoff or suspension, demotion or transfer, job elimination, change of job location, reduced wages, changes to hours of work, reprimand, coercion, intimidation or being disciplined.

Requesting a Review of an Occupational Health and Safety Order

If you or your company have been issued an Occupational Health and Safety order you can have that ordered reviewed. Referred to as a Director Review, Occupational Health and Safety will conduct an internal review of the Order and can either, uphold, vary or rescind the Order. For a review to be valid, it must be filed with Occupational Health and Safety withing 30 days of the Order being issued. Under the Occupational Health and Safety Act, the request can be made by any person to whom an order has been issued under section 59, 60 or 61, or who has received a decision issued under section 32.

It is important to understand at this point this review is being conducted internally by a member of the Occupational Health and Safety branch. While this is not an independent review of an OHS action, it is likely the best way to resolve the matter informally.

Appeal of an Occupational Health and Safety Order

Some actions by Occupational Health and Safety must be appealed directly to the Appeal Body. These appeals are heard before the Alberta Labour Relations Board (ALRB)

Director Review Decisions

If you are not satisfied with the outcome of a Director Review, you can independently appeal that decision to the Appeal Body. The Alberta Labour Relation Board will then hear your appeal and render their decision.

Discriminatory Action Complaints

If you have been issued with an OHS decision in relation to an alleged disciplinary action complaint, you can appeal this decision directly to the Alberta Labour Relations Board.

Appealing the Appeal Body

Decisions by the Alberta Labour Relations Board (ALRB) may be subject to an application for judicial review to the Court of Queen’s Bench of Alberta pursuant to s.72(13) OHS Act.

Call (403) 615 9709 or email pmincher@missionworkplace.ca