No. 13–Complaints of Reprisals for Exercising Rights Pursuant to Occupational Health and Safety Legislation
Information CircularPrintable version
The following is one in a series of information circulars prepared by the administration staff of the CIRB. The circulars are designed to provide employees, trade unions and employers with general information and a clearer understanding of Board processes. This information circular is an informal tool and is not binding on the Board.
What constitutes a complaint filed pursuant to section 133(1) alleging a violation of section 147 under the Canada Labour Code (the Code)?
Section 147 of the Code prohibits a federally regulated employer from retaliating against an employee for exercising his or her rights under Part II of the Code (Occupational Health and Safety). Specifically, under section 147, an employer is prohibited from dismissing, suspending, laying off or demoting an employee, from imposing a financial or other penalty on an employee or refusing to pay an employee remuneration in respect of a period that the employee would, but for the exercise of the employee’s rights under Part II, have worked, and from taking any disciplinary action or threatening to take such action against an employee because the employee:
- has testified or is about to testify in a proceeding taken or an inquiry held under Part II;
- has provided information to a person engaged in the performance of duties under Part II regarding the conditions of work affecting the health and safety of the employee or of any other employee of the employer; or
- has acted in accordance with Part II or has sought the enforcement of any of the provisions of Part II.
Section 133(1) of the Code permits an employee who alleges that an employer has taken action against them, in contravention of section 147, to make a complaint to the Board.
The Board cannot deal with a complaint filed pursuant to section 133(1) alleging a violation of section 147 of the Code unless the employer has taken disciplinary action or threatened to take such action against the employee or has imposed a financial or other penalty. Disputes involving action taken in accordance with Part II of the Code, where no disciplinary action or penalty has followed, are dealt with by health and safety officers with the ESDC Labour Program.
Situations Giving Rise to a Complaint under Sections 133 and 147 of the Code
Complaints filed under sections 133 and 147 generally arise in relation to two types of situations:
- Right to Refuse Work if Danger
These complaints relate to alleged retaliatory action occurring after an employee has exercised their right to refuse work where they have reasonable cause to believe that a danger exists. Sections 128 and 129 of the Code establish a comprehensive regime for employees and employers to follow when the right to refuse work is at issue. In such circumstances, a complaint may be made to the Board under section 133 of the Code only if the employee reported the work refusal to the employer (section 128(6)) or, when the employee continued to refuse to work, if the reports prescribed under section 128 were provided to the Minister of Labour (section 128(16)). Additional information on the right to refuse work may be found here.
Where a complaint is made in connection with the exercise of the right to refuse work, it is not the Board’s role to determine the validity of the right to refuse or the existence of a danger. Rather, the role of the Board is to determine whether there were any employer reprisals in connection with the refusal of work. Therefore, the onus is on the employer to demonstrate that any disciplinary action taken was not connected with the exercise of the right to refuse.
- Participating in a Process under Part II of the Code
These are complaints in which it is alleged that the reprisal occurred because the employee sought the enforcement of any provision of Part II of the Code, unrelated to the right to refuse unsafe work. Unlike in work refusal situations, the onus is on the employee to demonstrate that the disciplinary or reprisal action was taken because they exercised a right pursuant to Part II of the Code.
Who may file a complaint pursuant to section 133(1) alleging a violation of section 147?
Any employee of a federally regulated employer, whether represented by a union or not, who believes that the employer has taken disciplinary or retaliatory action, or threatened to take such action, against them for seeking to exercise any rights under Part II of the Code, may file a complaint pursuant to section 133(1) alleging a violation of section 147.
In cases where there is a union and it does not appear that the union has been provided with the notice of the complaint, the Board will usually provide the union with a copy of the complaint and offer it the opportunity to request intervenor status in accordance with section 12.1 of the Canada Industrial Relations Board Regulations, 2012 (the Regulations).
Federal public service employees may avail themselves of sections 133 and 147 of the Code; however, they do not fall within the jurisdiction of the Board and must file their complaint with the Federal Public Sector Labour Relations and Employment Board.
When to File a Complaint
A complaint must be filed within 90 days of the date the employee knew, or ought to have known, of the circumstances giving rise to the complaint (as required by section 133(2) of the Code). In rare and exceptional circumstances, the Board may accept a complaint as timely even where it is filed outside the 90-day time limit pursuant to its authority under sections 156(2) and 16(m.1) of the Code. For a description of the factors that the Board will examine when deciding whether or not to extend the time limit in a complaint filed pursuant to section 133(1) alleging violation of section 147, refer to Perron-Martin, 2014 CIRB 719.
How to File a Complaint
It is strongly recommended that a complainant use the Reprisal Complaint form. It asks for the necessary information that the Board needs in order to consider and determine the complaint. Not completing this form may cause delays in the complaint process.
The employee may file a complaint with one of the Board’s regional offices. It may be submitted electronically through the Board’s web portal, delivered in person or sent by courier, mail or fax. In such cases, the complaint is deemed to be filed on the date of receipt by the Board. If the complaint is sent by registered mail, the filing date is the date it was registered and mailed.
The information provided and any documents submitted to the Board are collected solely for the purpose of administering the Code and will be used to deal with and adjudicate matters that come before the Board. Parties that engage the Board’s services should be aware that this is a public process. Documents filed with the Board will be placed on the public record, with the exception of documents that the Board declares to be confidential pursuant to section 22 of the Regulations. The Board provides public access to case files and posts key decisions on its website. Board decisions may identify parties and witnesses by name and may include information about them that is relevant and necessary to the determination of the dispute. For sensitive information, a request can be made to the Board for a Confidentiality Order. See Information Circular No. 12 for the Board’s Policy on Openness and Privacy.
What happens after the complaint has been filed?
A letter will be sent to the parties [complainant and employer (respondent)], acknowledging receipt of the complaint and appointing an Industrial Relations Officer (IRO) to oversee the conduct of the file and assist the parties in reaching a settlement of the complaint.
If the employee is represented by a union, the union will be notified of the complaint and will be given a copy of the complaint. The union may choose to file a request to intervene. If the union’s request to intervene is granted, it will become a party to the complaint. The employee may want to contact the union to determine whether it can provide any assistance. Contact and consultation with the union prior to filing a complaint is often a prudent step to take.
Response and Reply
The employer has 15 calendar days from the receipt of the Board’s letter to file a response to the complaint. Upon receipt of a response, the complainant has 10 calendar days to file a reply.
The Board may refuse to consider any documents / submissions received after the prescribed time limit.
Exchange of Documents
Parties are required to deliver to the other party a copy of any response, reply or other document filed with the Board, and to advise the Board in writing of the time and manner of delivery (this is called service). The manner of service includes delivery by fax, by courier or in person. You may also deliver the document by mail or registered mail, but these may lead to delays in processing the complaint.
The IRO will communicate with the parties in order to arrange a mediation meeting to assist the parties in attempting to resolve the dispute. This mediation meeting is voluntary and the information acquired by the officer in the mediation process shall remain confidential and shall not be divulged to the Board.
If the complaint is not resolved through mediation or agreement of the parties, it will be referred to the Board and may be decided without holding an oral hearing. In this case, the Board would determine the complaint based on the written submissions and documents filed by the parties.
It is in the parties’ best interests to file complete, accurate, timely and detailed submissions in support of their respective positions.
If the Board decides to hold an oral hearing, it will inform the parties of the date and place of the hearing. Although a hearing may be scheduled, this does not preclude a settlement of the complaint by the parties at any time.
What remedies can be ordered by the Board?
If the Board determines that a complaint under section 133 is justified, the Board may, by order, require the employer to:
- permit any employee who has been affected by the contravention to return to the duties of their employment;
- reinstate any former employee affected by the contravention;
- pay to any employee or former employee affected by the contravention compensation not exceeding the sum that, in the Board’s opinion, is equivalent to the remuneration that would, but for the contravention, have been paid by the employer to the employee or former employee; and
- rescind any disciplinary action taken in respect of, and pay compensation to any employee affected by, the contravention, not exceeding the sum that, in the Board’s opinion, is equivalent to any financial or other penalty imposed on the employee by the employer.
The Board will notify the parties in writing of the Board’s decision.
If you have any questions concerning this information circular, you may contact a Board Industrial Relations Officer at 1-800-575-9696.
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