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Prohibited Action Complaints: What You Need to Know

Jessica Gibson

Associate
November 23, 2021

All workers in BC have the right to a safe and healthy workplace. WorkSafe BC is the authority that oversees workplace conditions and provides remediation for health and safety problems in workplaces throughout the province. 

The Workers’ Compensation Act identifies the rights of employees and workers in reporting workplace health and safety issues. The Act also identifies actions that are prohibited for employers, following the discovery or reporting of a workplace safety issue by an employee.

What is a Prohibited Action? 

In a nutshell, a prohibited action is a negative action taken by an employer, against an employee, in retaliation for the employee exercising their right to report a workplace health or safety issue under Section 48 of the Act

Section 48 identifies actions that an employee can take to uphold occupational health and safety (OHS) in their workplace. Under the Act, a worker has the right to:

  • Carry out duties in accordance with OHS or applicable health regulations or orders

  • Testify about a previously raised issue or complaint about workplace safety

  • Raise a concern about working conditions to a colleague, supervisor, union representative, safety officer, or any other person or worker with a stake in that workplace

Firing an employee for taking one of the above protected actions is a pretty cut-and-dry prohibited action case. But Section 47 of the Act identifies other actions that are prohibited in this context, including:

  • Laying off the employee or eliminating their job duties

  • Demoting the employee or blocking them from being promoted

  • Assigning some or all of the employee’s duties to a colleague

  • Assigning the employee to a different job site

  • Reducing the employee’s wages or hours

Of course, all of these actions can be taken by an employer for various reasons, and there are many cases where changes to an employee’s work are discussed and agreed upon by both the employee and the employer. The key thing that makes these actions “prohibited” is context: these actions are only prohibited actions when they are taken in direct response to the employee raising concerns about a workplace issue, as retaliation. 

Prohibited actions can also include coercion, manipulation, and undue reprimands.

What Elements are Needed to Establish a Prohibited Action Complaint? 

There are three main elements required to establish a prohibited action complaint:

  1. The employer or union has to have done something that is prohibited by section 47 of the Worker’s Compensation Act

  2. The worker has to have done something that is protected by section 48 of the Workers Compensation Act

  3. There must be a causal connection between the employer’s action and the worker’s protected activity

In this type of case, the burden of proof is on the employer to prove that they either did not take action against the employee, or that the action they took was not prohibited. 

It’s also important to note that the scope of a prohibited action complaint is only concerned with whether the employer took a prohibited action against the employee, not necessarily the specifics of the identified hazard or concern. 

For example, if an employee raised concerns about bullying or harassment in the workplace and had their hours reduced, the prohibited action complaint is only seeking compensation for losses incurred as a result of the action (in this case, wages lost as a result of having scheduled hours reduced). As such, the main thing that the employee would need to prove is that the reduction in hours was a direct result of their raising the concern. 

Detailing the extent of the bullying itself and its impact on the employee may help strengthen a claim, but it is not the focus of this type of complaint. If the employee were to seek further damages for the distress caused by the bullying, that would be a separate Worksafe claim.

What is the Process for Submitting a Complaint?

Currently, employees have up to 1 year after an initial incident (that being the prohibited action taken by the employer) to make a complaint. For example, if you noticed a workplace safety issue and reported it to your supervisor in December 2021, but were disciplined for that report in January 2022, you would have until January 2023 to submit a prohibited action complaint. 

As with any type of workplace complaint, be as detailed as possible when recording information relevant to your case. There should be some sort of paper trail or record of you raising a specific concern (and in cases where there was, for example, harassment or bullying, some evidence of that hazard will help strengthen your case). 

Since the key component of a prohibited action complaint is establishing a causal relationship between the prohibited action and the protected action, having some documentation that supports a link between the two is essential. For example, if you started receiving negative performance reviews after you reported a hazard, being able to establish both the date of your report and the date of the first negative review is very important. Any positive performance reviews you received prior to that date will also be helpful. 

You can submit a complaint to Worksafe via mail, or online through their website. Once you submit the complaint, Worksafe will review it and forward it to their prevention department. 

From there, an inspector will conduct a workplace visit and gather facts from the employer’s perspective. The inspector will follow up with the employee/complainant, and likely present facts from the employer and ask for responses from the employee to build a fuller picture for their report. The full report is then sent back to the prevention department.

At this point, WorkSafe will offer third-party mediation — an opportunity to resolve the situation internally, with the help of a WorkSafe inspector. The only way mediation can happen is if the employer and complainant both agree to it. If this is not agreed upon, the complaint goes to the adjudication phase, wherein a WorkSafe lawyer will decide whether the claim is valid. 

If WorkSafe’s lawyer rejects the claim, you have 90 days to appeal. If the lawyer accepts the claim, then they can issue policy recommendations and a request for reparations to the employer. 

It’s worth noting that mediation is the far quicker solution in prohibited action cases. You may wait 6 to 8 weeks for a mediation decision, whereas the adjudication process can take anywhere from 6 months to 2 years, depending on the complexity of the complaint. (A 6-month adjudication usually only occurs with extremely clear wrongful dismissal).

The last important thing to know, as a complainant, is that it’s very important to be able to demonstrate that you were making a conscious effort to mitigate your losses. For example, if you lost your job, WorkSafe will want to see some evidence that you are looking for a new one while the complaint is processed.