In BC, the Workers Compensation Act protects workers from employers and unions retaliating against them for exercising their rights under health and safety laws. If this happens, workers can get compensation, or even get their jobs back, by filing a “prohibited action” complaint at WorkSafeBC.
Last month, I was invited to speak at a Continuing Legal Education (“CLE”) course to inform other lawyers about the ins and outs of prohibited action complaints. In our presentation, the Co-Chair of the CLE course and I explained what prohibited action complaints are and what workers and employers should know about them.
In this blog, I share a bit about what we talked about from the worker’s perspective. As explained below, the law protects workers who exercise a safety right from any kind of negative action taken against them in their jobs. What’s more, the settlements and awards and remedies that workers can win from a strong prohibited action complaint can be huge – in many cases, far better than what they would get in court if they’d been wrongfully dismissed.
What is a “prohibited action?”
Under the Workers Compensation Act, a “prohibited action” is basically anything that has a negative impact on a worker. This means you can make a prohibited action complaint against an employer for more than a losing your job or getting suspended. For example, you could make a complaint for a prohibited action for a demotion, or not getting a promotion, or any kind of discipline at all.
What kind of worker activities are protected from “prohibited actions?” A lot! Basically, you’re protected against an employer taking a prohibited action against you if you’re doing anything that’s safety-related. This includes everything from exercising a right related to occupational health and safety rules, such as raising a safety concern, to giving information about the health and safety environment at work, to testifying against the employer about a safety-related issue.
Unfortunately, you can’t make a prohibited action complaint because the employer took action against you for filing a workers compensation claim with no safety-related issue involved.
How do I make a prohibited action complaint?
First thing you need to know about are the time limits. To make a complaint, the worker must file a complaint with WorkSafeBC within one year of the prohibited action that took place.
Second, if you’re unionized, you’ll also have to choose between filing a grievance or making a complaint at WorkSafeBC. You can’t do both.
What does making a prohibited action complaint look like? You can file your complaint at WorkSafeBC by using a form. Go through the form methodically. Make sure you answer everything they ask in detail. Be as specific as possible when describing what happened. Details matter! Be like a journalist: answer the “5Ws” in detail wherever you can: Who, What, When, Where, Why.
But these are just the basics. For your prohibited action complaint to be accepted by WorkSafeBC, and be taken seriously by the employer, you need to show the following things:
- The employer took a “prohibited action” against you (in other words, did something that affected you negatively at work, like discipline or termination);
- You were doing some kind of safety-related activity (e.g. raising a health and safety concern);
- There’s a connection between the prohibited action and the health and safety activity.
This third item, the connection between the prohibited action and the safety activity of the worker, is often the hardest to make out. Making out this connection is, at bottom, how you show that you were retaliated against; making the connection between the prohibited action and the safety activity is how you demonstrate the employer took a prohibited action against you because of the safety activity.
Typically, the thing that will demonstrate this connection the best is the timing of the prohibited action taken against you. For example: getting fired shortly after you informed the employer that a piece of the employer’s equipment was unsafe. Other evidence that can show this sort of connection include the employer not taking your complaint seriously, or not being able to show that they had any other credible reason for taking the prohibited action against you.
The goods news here for workers is that the reason for the retaliation doesn’t need to be mostly because of a safety concern – it just has to be one reason for the retaliation. In other words, if the employer’s decision is even tainted by some kind of anti-safety attitude, then the worker’s prohibited action complaint will succeed.
How can I make sure I get the best settlement or award possible?
- Make a strong complaint supported by strong evidence. The stronger your complaint and supporting evidence, the better the chance you’ll wind up with a good settlement or award. So it’s important to file a complaint that not only ticks off all the legal requirements for a successful prohibited action complaint that I talk about above, but attaches, if possible, evidence like emails, pictures, or signed witness statements.
- Attend mediation – and be prepared! If you’ve got that strong complaint with strong evidence, odds are good that the employer will attend a mediation. This is where a third-party, the mediator, meets with you and the employer to try to arrange a settlement where the employer agrees to give something to the worker in order for the worker to withdraw the complaint.
How do you prepare for a mediation? First, know what you could reasonably get in an award if you “went all the way,” and know what you’re willing to settle for in the mediation. Usually, the biggest things you could get if you won a prohibited action complaint where you’ve been fired are your job back or a “make whole” payment of wages (i.e. the wages you would have received had you not been fired). At mediation, it’s not helpful to ask for things you couldn’t get in an award from WorkSafeBC, like money for pain and suffering or punitive damages. However, it’s not unusual to ask for a reference letter as part of a settlement.
Second, being prepared also means being ready to talk about the legal strength of your claim and talk about the evidence you have if you’re challenged on it by the other side – or even the mediator. (A lawyer really helps with this – more on that below.) If there’s a published decision or two similar to yours that went in the worker’s favour, bring it along.
Third, if you’re looking to get wage loss, remember to bring documentation showing your actual loss, like T4s or income tax statements. If you don’t have a job, also be prepared to provide evidence that you’ve been looking for a job! (If you haven’t been looking for a job, then you might have your damages reduced or not awarded altogether. This is called “the duty to mitigate.”)
3. Talk to a lawyer as soon as possible. This is especially important if your wage loss is high, or you don’t expect to find another job soon. People in court or tribunals generally have a much better chance at success, and a much better chance of getting higher awards or settlements, when they go with a lawyer rather than representing themselves. This is the case for prohibited action complaints. A lawyer experienced in prohibited action complaints can make sure your prohibited action complaint and supporting evidence is as strong as possible. He or she will know the relevant issues that often come up in these complaints, and how employers typically defend against them. As well, a lawyer, as a professional negotiator, can also help you at mediation to get the best possible settlement you can get at the end of the day.
If you think an employer has taken a prohibited action against you due to a safety issue, contact Labour Rights Law to set up an initial consultation.
DISCLAIMER: The content of this article, and this website generally, is not intended as legal advice and cannot be relied upon as legal advice. To provide legal advice on your problem, a lawyer must first understand your specific situation.
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