August 5, 2021
When you exercise your rights under the Canada Labour Code, Part II, you are protected. In this module, you will learn what is considered an occupational health and safety reprisal, and what you can do if you think that a reprisal has been taken against you. This module will also give you a deeper understanding of the protection you have under the Code.
By the National Joint Council
Topics include:
- What is an occupational health and safety disciplinary action?
- Disciplinary action
- Complaints when action is taken against you
- Quiz: 4 questions
- Going further than that…
Module 9: Disciplinary Action
What is an occupational health and safety disciplinary action?
If your employer threatens or imposes a penalty on you because you followed the Canada Labour Code, Part II, (the Code, Part II) or tried to have it enforced, that penalty or threat of a penalty is called a reprisal and it is against the law.
Organizations[1] must be proactive in preventing reprisals and stopping them if they occur. Executives, managers and supervisors at every level have an important responsibility to protect you from reprisals. They must understand what a reprisal is, and that it is not only inappropriate, but also prohibited by the Code, Part II.
Disciplinary action
Section 147 deals with disciplinary action taken against employees who exercise various rights provided for under the Code, Part II.
No employer shall dismiss, suspend, lay off or demote you; impose a financial or other penalty on you; refuse to pay your remuneration in respect of any period of time that you would have worked; or take any disciplinary action or threaten to take any such action against you because you sought the enforcement of your rights or privileges under the Code, Part II.
Your employer cannot take any disciplinary action against or threaten to take any such action against you because you testified or are about to testify in a proceeding or inquiry held under the Code, Part II.
Proceedings and inquiries that may require an employee’s testimony could include:
- An inquiry initiated by the Minister of Labour
- An inquiry conducted by a health and safety officer
- An inquiry conducted by an appeals officer proceeding before the Federal Public Sector Labour Relations and Employment Board (the Board) inquiring into an employee’s complaint
- Proceedings before a court in the event of a prosecution
Your employer cannot take disciplinary action or threaten to take such action against you if you have provided information to a person engaged in performing duties under the Code, Part II, regarding conditions of work that affect your health or safety or that of any other employee. Persons having information-gathering duties or exercising their responsibilities under the Code, Part II, include health and safety officers and appeals officers appointed by the Minister of Labour, Board members, members of policy committees, members of workplace committees, and health and safety representatives.
You are protected in accordance with section 126 of Part II of the Code when you:
- Follow prescribed procedures with respect to health and safety, and take all reasonable and necessary precautions to ensure the health and safety of yourself, other employees or any person likely to be affected by your acts or omissions;
- Cooperate with any person carrying out a duty under the Code, Part II;
- Cooperate with or provide information to members of policy or workplace committees or to health and safety representatives;
- Report to the employer any thing or circumstance in a workplace that is likely to be hazardous to your health or safety, or to that of other employees or persons granted access to the workplace by the employer; or
- Report to the employer any situation that you believe to be a contravention, by the employer, another employee or other person, of the Code, Part II, or the regulations.
The prohibition also applies to actions taken against an employee who complains to their supervisor (section 127.1), refuses to work (section 128), ceases to work (section 132) or initiates a complaint to the Board (section 133).
As mentioned in previous modules, the enforcement of the Code, Part II, is the responsibility of the health and safety officers appointed by the Minister of Labour. The protection afforded by section 126 also applies to employees who contact or complain to these officers regarding a perceived hazard or violation.
Complaints when action is taken against you
If you have reasonable grounds for believing that a reprisal has been taken against you or someone acting on your behalf (e.g., a union representative), you may file a complaint with the Board. The Board can hear the complaint under its own rules of procedure (section 134) and can require the employer to take corrective action.
A complaint must be made to the Board no later than 90 days after the date when the complainant knew or, in the Board’s opinion, ought to have known of the action or circumstances giving rise to the complaint.
A complaint in respect of the exercise of the right to refuse may not be made unless the employee has complied with the right-to-refuse reporting provisions, or a health and safety officer has been notified of the matter that is the subject of the complaint.
Module 8 of this training explains the process to be followed during the initial refusal to work, and when a health and safety officer conducts an investigation following a continued refusal on the part of the employee. An employee cannot complain of disciplinary or discriminatory action if they did not comply with their obligations to report the refusal or the continued refusal to the employer.
In addition, you or your union representative, acting on your behalf, may not refer a complaint to arbitration or adjudication. If a complaint of disciplinary or discriminatory action has been initiated with the Board, the same complaint cannot be referred to a parallel dispute resolution authority, in order to preserve the exclusive authority of the Board.
On receipt of a complaint, the Board may assist the parties to settle it. If the Board decides not to assist the parties, or if the complaint is not settled within a period considered reasonable by the Board, it shall be heard and determined.
If the Board determines that an employer has contravened section 147 of the Code, Part II, it may, by order, require the employer to cease contravening that section. If applicable, the Board may also order 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 is equivalent to the remuneration that would have been paid by the employer;
- Rescind any disciplinary action taken and pay to any employee affected by the contravention, compensation not exceeding the sum that is equivalent to any financial or other penalty imposed on the employee by the employer.
Quiz – Module 9: Disciplinary Action
- An employee can be disciplined for making a complaint.
- True
- False
- A complaint of reprisal can be filed by a representative designated by the employee.
- True
- False
- Any employee who believes that a reprisal has been taken against them cannot file a complaint directly with the Federal Public Sector Labour Relations and Employment Board.
- True
- False
- All departments[2] must protect their employees from reprisal.
- True
- False
Module 9: Going further than that…
You are invited to enhance your skills and knowledge by consulting the following link.
Federal Public Sector Labour Relations and Employment Board:
[1] In the Canada Labour Code, the more general term “organization” is used. When referring to the Canada Labour Code in this training package, the same term is used.
[2] In this training package, “department” is generally used to refer to federal departments and agencies.