Formerly referred to as “discriminatory action” under the Workers Compensation Act, “prohibited action” occurs if an employer takes an action that adversely affects a worker for taking a protected activity. Prohibited action includes any act or omission by an employer or union that negatively affects a worker concerning their work. This could be a suspension, layoff or dismissal; demotion or loss of opportunity for promotion; transfer of duties, change of location of workplace, reduction in wages or change in working hours; coercion or intimidation; imposition of any discipline, reprimand or other penalty; or the discontinuation or elimination of the job of the worker.
Protected activities are actions taken by a worker that a worker cannot be penalized for from their employer or union. This includes exercising any right under the health and safety provisions of the Workers Compensation Act or the Occupational Health and Safety Regulation, or giving information to the employer, another worker or the union, or WorkSafeBC concerning conditions affecting the occupational health or safety or occupational environment.
For example, a worker exercising the right to refuse unsafe work, under section 3.12 of the Occupational Health and Safety Regulation, is a protected activity. An employer must respond to that report, applying the process set out in section 3.12, and cannot take action against the worker simply for raising the concern. To do so would be a prohibited action.
No, provided you do so for a reason other than the worker taking the protected action. What is prohibited is taking action against a worker because they engaged in a protected activity, such as raising a health and safety issue. The fact that a worker has raised such an issue does not insulate them from an employer taking action against them for other reasons, such as poor performance. It is important, however, for an employer to document the reasons for taking the action in the event the worker files a prohibited action complaint with WorkSafeBC.
However, WorkSafeBC applies the “taint” principle, which recognizes that there are often many reasons to take an action against a worker, such as termination. So long as one of the reasons to take the action in question was the worker performing a protected action, such as raising a health and safety issue, then the action against the worker is “tainted”, and constitutes prohibited action.
WorkSafeBC has an internal group of lawyers who deal with prohibited action complaints. WorkSafeBC will first attempt to see if a mediated settlement of the complaint can be reached. If it cannot, WorkSafeBC will invite the employer to respond to the complaint, including by providing written submissions and any supporting evidence. WorkSafeBC will then weigh the evidence and determine if prohibited action took place.
Employers are not required to respond, but they nonetheless should. Failing to respond will expose the employer to the risk of orders from WorkSafeBC to correct the alleged prohibited action.
Workers must establish what is called a “prima facie” case. That is, workers must show certain facts that, if accepted at face value, would mean that the employer engaged in prohibited action. There are three facts the worker must show to establish a prima facie case:
· First, that the employer took a prohibited action against the worker, such as termination or reduction of hours;
· Second, that the worker engaged in a protected activity, such as reporting a health and safety issue to the employer or WorkSafeBC; and
· Third, there is a causal connection between the protected activity and the prohibited action.
While the above creates a hurdle for the worker to establish their complaint, WorkSafeBC accepts the worker’s evidence at face value at this stage.
Once the worker has established a prima facie case, prohibited action is presumed. It is then on the employer to rebut the presumption by showing that prohibited action did not take place. At this stage, all evidence, including the employer’s evidence and the worker's evidence, are subject to greater scrutiny.
No. A worker cannot have the same alleged prohibited action dealt with by a grievance procedure and by WorkSafeBC’s prohibited action complaint process. Accordingly, if the worker has decided to resolve the matter through the union’s grievance process, it is important for employers to advise WorkSafeBC of that process, and why the grievance process covers the same alleged prohibited action as the worker’s prohibited action complaint. This can quickly resolve the WorkSafeBC prohibited action complaint process.
If WorkSafeBC finds an employer engaged in prohibited action, the employer and the worker will be asked what the appropriate remedy is. WorkSafeBC will attempt to find an order that will put the worker back into the position that the worker would be in if the prohibited action took place. This can include having to give the worker their job back or pay lost wages.
You may appeal directly to the Workers Compensation Appeal Tribunal, by filing a notice of appeal form within 90 days of WorkSafeBC’s decision. The Workers Compensation Appeal Tribunal will then contact you to advise you of the next steps in the appeal process.
You are not required to retain a lawyer to deal with a prohibited action complaint; however, you may want to have a lawyer represent you to ensure that you correctly identify all the legal issues in your case and focus on the most important issues. Employers can appeal WorkSafeBC’s prohibited action decisions directly to the Workers Compensation Appeal Tribunal (“WCAT”). Employers can also request that the British Columbia Supreme Court perform a “judicial review” of WCAT’s decision.
In 2014, the British Columbia Court of Appeal decided that you must raise any legal issues, including any challenges you wish to make under the Charter of Rights and Freedoms, at the initial stages of your case. If you fail to do so, the court can refuse to hear those issues when you get to court on a judicial review. Accordingly, if you think the matter may make it to court, you will need to know what issues may be raised there. A lawyer can assist with that.
Yes. You may retain a lawyer to act as your “authorized representative”. WorkSafeBC will then deal with that lawyer.
If you are an employer and would like to speak to Graeme Hooper about a discriminatory action complaint, contact us.
