What is a Prohibited Action Complaint?
Under the BC Workers Compensation Act, it is illegal for an employer or union to punish a worker for reporting a health or safety issue at work.
The definition of prohibited action is found in section 47 of the Workers Compensation Act and includes any act or omission by an employer or union, or by a person acting on behalf of an employer or union, that adversely affects a worker with respect to (a) any term or condition of employment, or (b) any term or condition of membership in a union. Notably, prohibited actions include suspension, layoff or dismissal, demotion or loss of opportunity for promotion, and imposition of any discipline, reprimand or other penalty.
Section 48 of the Act protects a worker from prohibited action. It reads:
An employer or union, or a person acting on behalf of an employer or union, must not make or threaten a prohibited action against a worker:
- for exercising any right or carrying out any duty in accordance with the occupational health and safety (OHS) provisions, the regulations or an applicable order,
- for the reason that the worker has testified or is about to testify in any matter, inquiry or proceeding under this Act or the Coroners Act on an issue related to OHS or occupational environment, or
- for the reason that the worker has given any information regarding conditions affecting the OHS or occupational environment of that worker or any other worker to
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- (i) an employer or person acting on behalf of an employer,
- (ii) another worker or a union representing a worker, or
- (iii) an officer or any other person concerned with the administration of the OHS provisions.
If a worker experiences repercussion from an employer for raising a health and safety concern, the worker can submit a prohibited action complaint.
Elements in a prohibited action complaint
There are four main elements in a prohibited action complaint.
First, the worker must suffer the kind of negative employment consequences described in section 47 of the Act, such as a dismissal.
Second, the worker must have engaged in the type of safety activities protected under section 48 of the Act. For example, the Act provides that workers have a duty to take reasonable care to protect their own health and safety – this includes bullying and harassment when observed or experienced in the workplace.
Third, the worker must provide evidence of a causal connection between the negative employment consequence and the safety activity.
Fourth, if the first three elements are established, the onus shifts to the employer to disprove the worker’s basic prohibited action case. The employer must demonstrate that its decision to impose negative employment consequences against the worker was not tainted by any intention to retaliate against the worker for the safety activity in question. For example, an employer may be able to show that the worker’s dismissal was solely due to performance problems, and not for reporting bullying and harassment.
If the Workers’ Compensation Board determines that the alleged contravention occurred, it may order certain remedies, including that the employer or union cease the prohibited action, that the employer reinstate the worker, that the employer repay any lost wages, and that any reprimand or other references to the matter in the employer’s or union’s records on the worker be removed.
If you are an employee who has been punished for reporting a health and safety issue at work, or you are an employer who is accused of carrying out a prohibited action, contact us now. We want to help!
