Discriminatory Actions Relating to Occupational Health & Safety Factsheet


If you raise an occupational health and safety issue, carry out any required health and safety related duties, or testify in a proceeding about a health and safety matter, or provide others with information about health and safety matters, neither your employer nor union can take any discriminatory action against you. 

What is a Discriminatory Action?

A discriminatory action includes any act or omission by an employer or union, or a person acting on behalf of an employer or union that negatively affects a term or condition of your employment or your membership in a union.

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;
  • being subjected to any discipline, reprimand or penalty; or
  • discontinuation or elimination the job.

 

In what circumstances might discriminatory action occur?

An employer or union, or a person acting on behalf of an employer or union must not take or threaten discriminatory action against a worker for:

  • exercising any right or carrying out any duty under the occupational health and safety provisions of the Workers Compensation Act or the regulations; testifying in any matter, inquiry or proceeding under the Workers Compensation Act or the Coroners Act on occupational health and safety or occupational environment issues.
  • giving any information on conditions affecting the occupational health or safety or occupational environment of workers, to an employer or person acting on behalf of an employer, to another worker or a union representing the worker, or a WorkSafeBC officer.

Failure to pay wages relating to Occupational Health and Safety

A worker can also make a complaint if an employer fails to pay wages that were required to be paid relating to occupational health and safety matters. Examples of this includes failure to pay wages for attending a health and safety meeting or wages for an educational leave relating to a joint health and safety committee. 

What should I do if I have a discriminatory action complaint?

If you think you have experienced discriminatory action relating to occupational health and safety, you should contact the WorkSafeBC office nearest to you. You will be asked to give some of the details of the complaint as well as a telephone number in order for a Prevention Officer to contact you. 

The complaint must be made in writing, and as a result, the WorkSafeBC will provide you with the following forms:

  • Worker Complaint of Discriminatory Action: This form provides the Board with information about you, your employer, and the details of your complaint; 
  • Worker Consent Form:  This form allows the Board to contact your employer or union; and
  • Election Form: (if you are a union member).

Should I go to my union?

If your complaint is against your employer, you should talk to your union. You may have rights under your collective agreement which will offer a better result than that which you would obtain under the discriminatory action process. If your complaint is against your union, you should talk to WorkSafeBC directly. 
If you do not want to go to your union about a complaint, WorkSafeBC will ask you to sign an Election Form. This form says that you choose to go through WorkSafeBC instead of your union and gives WorkSafeBC permission to contact your employer.

Time Limits

It is critical to keep in mind the following strict time limits which cannot be extended:

  • If the complaint is about a discriminatory action such as dismissal, coercion or intimidation, discipline or reprimand, you must file a written complaint with the WorkSafeBC within 1 year of the discriminatory action.
  • If the complaint is about a failure to pay wages relating to an occupational health and safety matter, you must file a written complaint with the WorkSafeBC within 60 days after the wages became payable.
  • If the WorkSafeBC decides that your employer has not taken a discriminatory action against you or does not owe you wages, you have 90 daysto appeal the decision to the Workers’ Compensation Appeal Tribunal (WCAT).

What happens when I make a complaint to WorkSafeBC?

After discussing your complaint with you, the Prevention Officer will make an informal assessment about whether your complaint relates to an occupational health and safety matter and whether there appears to be a ’prima facie’ (meaning “on the face of it”) case of discriminatory action/failure to pay wages. As part of this determination the Prevention Officer may investigate the matter by interviewing you, the employer (or the union), and any witnesses. The Prevention Officer may try to assist in settlement of the complaint. All settlement discussions are on a ‘without prejudice’ basis; where anything said or done that relates to settlement cannot be used against the other party in the future, in the event that the complaint does not settle.   

Following the investigation and if a settlement cannot be reached, the Prevention Officer will forward the written complaint and any information resulting from the investigation to the Compliance Section at the Investigations Division of WorkSafeBC.  A Case Officer in the Compliance Section will review the complaint in order to confirm that it is within jurisdiction of WorkSafeBC, that there is a prima facie case of discrimination, and that the complaint has not been grieved or settled. If the complaint is found to be outside WorkSafeBC’s jurisdiction or determined not to be a prima facie case, or the complaint has been grieved or settled, it will be dismissed. Where the complaint meets all of the necessary factors, the parties may be offered an opportunity to mediate the case.
Mediation provides parties with the opportunity to discuss the settlement of the complaint with the assistance of an independent mediator. WorkSafeBC pays all costs associated with the mediation. If both parties agree to settle the matter at mediation, the matter ends.

If either party does not want to participate in mediation or if no settlement is reached in mediation the complaint will be adjudicated by a Case Officer. The adjudication will usually occur by way of written submissions provided by the parties. However, in some cases an oral hearing may be scheduled, for example, where the Case Officer considers credibility to be an issue.

How is the complaint decided?

Once a prima facie complaint has been found, the burden of proof is on the employer or union to prove that discriminatory action or failure to pay wages did not take place. This means that once the worker has provided enough information to indicate that a discriminatory action or failure to pay wages may have occurred, the employer or union must prove that did not occur. The employer or union may choose to participate in the adjudication process or they may not. The decision made by the Case Officer is based only on the information before the officer at the time the decision is made; including information from the parties and from the investigation.
 
There are two possible outcomes of the adjudication:

  1. discriminatory action is found to have taken place, in which case a remedy may be ordered; or
  2. discriminatory action is not found to have occurred, in which case the complaint will be dismissed. A written decision will be provided to you setting out the result and the reasons for the decision.

What kind of remedies can be ordered?

If a decision is made that discriminatory action occurred and your complaint was regarding your employer, WorkSafeBC can order the employer to:

  • stop the discriminatory action;
  • reinstate you to your former position;
  • remove any reprimand or unfavourable references to the matter, from your employment records;
  • pay you for any reasonable out-of-pocket expenses that you incurred as a result of the discriminatory action;
  • pay any back wages owed to you; or
  • do anything WorkSafeBC considers necessary to ensure compliance with the Act and regulations.

If your complaint was regarding your union, WorkSafeBC can order the union to:

  • stop the discriminatory action;
  • reinstate your membership;
  • remove any reprimand or unfavourable references to the matter, from union records;
  • pay you for any reasonable out-of-pocket expenses that you incurred as a result of the discriminatory action; or
  • do anything WorkSafeBC considers necessary to ensure compliance with the Act and regulations.

What happens if my complaint is dismissed or I disagree with the remedy?

If your complaint is dismissed or if your complaint was upheld but you disagree with the remedy, you can appeal the decision to the WCAT. You have ninety (90) days to file your appeal.

What else can I do if I feel I have been discriminated against?

If your complaint involves matters other than occupational health and safety issues such as labour relations/human rights/union representation you should immediately contact:

The Employment Standards Branch

Deals with employment matters that arise out of non-unionized work places.

  • For example, if you are a non-unionized worker, and you are fired or laid off without a valid reason, or you are owed wages for overtime or for other types of work related pay.

Telephone: toll free 1-800-663-3316

Human Rights

Deals with discrimination relating to non-occupational health and safety issues such as: age; ancestry; colour; criminal conviction; physical or mental disability; family status; place of origin; marital status; political belief; race; sex; sexual orientation; and religion.

  • For example, if you are laid off from your job, fired, demoted, or denied an opportunity for advancement, based on any of the above grounds of discrimination.

Telephone: the B.C. Human Rights Tribunal (provincial matters): 604-775-2000 or
toll free at 1-888-440-8844
 
Telephone: the Canadian Human Rights Commission (federal matters): 604-666-2251 or toll free at 1-800-999-6899

The Labour Relations Board

Deals with union-related matters.

  •  For example, if you are a member of a union and the union refuses to represent you, or there are problems with the representation. 

Telephone: in the Lower Mainland call 604-660-1300.

Outside the Lower Mainland call Enquiry B.C. at 1-800-663-7867 and ask to be connected to the above number.