Supervisors and safety professionals have often told me that they fear being personally charged under the Occupational Health and Safety Act. Now, a human rights tribunal has decided that an employee’s generalized anxiety disorder was caused by such a fear.
The employee was a “Supervisor, Regulated Substances, Asbestos” with the Hamilton-Wentworth District School Board. In the fall of 2001, she developed a generalized anxiety disorder as a reaction to the “highly stressful nature of her job, and her fear that, in making a mistake about asbestos removal, she could be held personally liable for a breach of the Occupational Health and Safety Act . . .”
According to the Human Rights Tribunal of Ontario, the employee testified that “the Ministry of Labour was critical of the [school board's] handling of its asbestos removal projects and that she, as the supervisor of these projects, was personally threatened with a substantial fine.”
She went off work due to the anxiety. Medical evidence showed that she could not work in any position involving liability for health and safety issues. She asked to return to work in a position that did not involve any risk of OHSA liability.
The Tribunal decided that there were other positions to which the school board could have returned the employee that did not involve potential OHSA liability. Because the school board did not return her to such a position, it had breached its duty to accommodate. See my colleague, Catherine Coulter’s article about the significant damages (almost 10 years’ income) awarded to the employee.
The case is an interesting read for safety professionals, and perhaps a reminder to employers to provide sufficient training to ensure that their supervisors and safety professionals can sleep well at night without being nagged by fears of personal charges or liability under the Occupational Health and Safety Act.
Fair v. Hamilton-Wentworth District School Board, 2012 HRTO 350 (CanLII) (decision that employer breached duty to accommodate) and 2013 HRTO 440 (CanLII) (decision awarding damages).