In our last article we discussed ways in which you can reduce claims costs under the workers compensation system. This week we provide an overview of discriminatory action complaints in the hope that employers who know what they are, will be better positioned to deal with them. If you have never heard of a discriminatory action complaint, pay attention. Best you hear about it from us first.
First off, don’t be misled by the name. Discriminatory action complaints have nothing to do with human rights. Nor do they have anything to do with discrimination. A complaint of discriminatory action is simply a complaint by a worker under the Workers Compensation Act that the worker has suffered some adverse treatment because they participated in protected health and safety activities under the Act.
It is important to be aware of discriminatory action complaints because they are very difficult to defend. If the worker can establish 3 basic elements, the onus is on the employer to prove a negative.
Specifically, at the first stage of adjudication a worker must provide evidence capable of showing that:
- They exercised a health and safety right or carried out a health and safety duty under Part 3 of the Act or the associated Regulations (or engaged in one of the other specified protected activities under section 151 of the Act);
- They suffered negative consequences such as a transfer, demotion, change of hours, lay-off, dismissal, etc.; and
- A causal connection exists between numbers (1) and (2).
Where the adverse treatment occurs in close temporal proximity to the worker engaging in a protected activity, a causal connection may be implied by WorkSafeBC.
As a general rule, a worker’s evidence is accepted by WorkSafeBC as true at the first stage, meaning it is a low bar to shift the onus to the employer. Where a worker successfully meets the first stage of the assessment, the employer must prove the adverse treatment suffered by the worker was neither wholly nor in part motivated by the worker’s participation in protected health and safety activities. The underlined portion is important because it represents what has become known as the “taint principle”. The taint principle effectively means that the safety consideration need not be the only or even the dominant reason for the adverse treatment. It is sufficient if it was one of the reasons for the adverse treatment. For example, if the evidence shows 90% of the reason for discipline was misconduct, but 10% of the reason was safety concerns raised by the worker, the complaint will succeed.
Where a complaint of discriminatory action is successful, WorkSafeBC has a broad range of remedies available to it, including reinstatement and compensation for lost wages. Add to those monetary and morale costs, the costs of defending such an action (including legal costs and the cost of resources allocated to defend the action) and these are complaints employers would be wise to avoid.
Tips for avoiding discriminatory action complaints:
- Take safety seriously;
- Document discipline carefully; and
- Clearly set out the reasons for actions taken and ensure they have nothing to do with protected health and safety activities.
For questions relating to this article, please contact Lana Tsang.