A Pie in the Sky view of the Eye in the Sky

A May 15, 2011 report issued by the United Nations Human Rights Council (UNHRC) concludes that Internet access must be recognized as a human right. The report, entitled Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue (report A/HRC/17/27) urges, among other things:

Given that the Internet has become an indispensable tool for realizing a range of human rights, combating inequality, and accelerating development and human progress, ensuring universal access to the Internet should be a priority for all States.

The report also states that:

States [should] ensure that individuals can express themselves anonymously online and to refrain from adopting real-name registration systems.

Given that North American and British governments – those bastions of freedom – have made numerous moves in recent times to curtail Internet freedom, we can readily imagine that the dust has already begun to settle on this report.

How to win friends and a workers’ compensation award

Matthew Styles was the manager of a restaurant in Melbourne, Australia in 2008. And it appears he was not so good at customer service.

When an allegedly drunk customer started to complain about how long it was taking to prepare his food order at the Red Rooster, Styles engaged in a foul-mouthed shouting match with the customer. But the verbal insults weren’t enough for these two. While it isn’t clear who actually started the fight, video footage from the order window shows Styles with his fists raised as the customer angrily approached him. Styles claimed later to be over-stressed because three of his staff had reported in sick that day.

In the ensuing fight, the video also captured Styles breaking his wrist while repeatedly pounding on the customer. Naturally, he filed a workers’ compensation claim for his injuries.

The Red Rooster was not amused by their employee’s behaviour and terminated Mr Styles for a breach of “behaviour standards”. And they objected to his workers’ compensation claim.

Although the employer pointed out that Mr Styles has a lengthy criminal record, a magistrate was not swayed and considered the customer to have been the aggressor. The employer was even less amused when the magistrate ruled that the broken wrist arose “out of or in the course of the employment”. The Red Rooster has appealed the judge’s decision, but there is no word if Styles ever objected to being fired.

Now, Australian rules may be a little different, but a word to the wise employer in Canada: Try to discourage your employees from beating the daylights out of your customers.

Posted by Paul Harris

WSIB and OHS for Employers in Ontario – April 2011

The Power of Words in Health and Safety:

How can we obtain better responses to what we say in health and safety? I found this very provocative video on a great blog by Tim Autrey called “hufactor.com”. I am looking forward to checking out his “PEM” Performance Enhancement Matrix. His site looks interesting:”practicingperfectioninstitute.com“.

Take a minute to watch it here.

WSIB Eligibility Adjudicator Reverses Entitlement Decision

This is a fantastic success story about a tenacious employer who decided to fight what appeared to be a fraudulent WSIB claim filed by a worker and allowed by the WSIB despite his excellent evidence to the contrary. He was threatened with “non-cooperation and return- to-work obligations” and was told by the EA and her manager that they would not even review the surveillance evidence and telephone records which clearly demonstrated that the worker could not have been “in the course of his employment” at the time of the alleged workplace injury. Then his Account Specialist told him not to waste his money on a lawyer because his company surcharge would be capped due to the the fact that he was in the MAP experience rating system! (helps to explain the $13 billion unfunded liability). Wow.

She did not even consider the fact that a worker would be collecting full LOE benefits for an indefinite period of time and that the employers of Ontario would be paying for those fraudulently obtained benefits. It is truly disappointing that system has become so dysfunctional that the WSIB would not even consider the unequivocal evidence that the employer presented until he hired us to help convince them. With the help of a highly skilled investigations company targeting their efforts at the very crux of the EA’s faulty decision- making and our lengthy submission outlining the law, facts, policy and the inadequate conduct and decision-making of the Board, the decision was reversed. One small MAP employer financed this battle and won both for his own cost statement and for the rest of the employers in the Province.

 

WSIB Funding Review needs to hear from you

The WSIB funding is being reviewed for major overhauls. Professor Harry Arthurs is charged with the review and recommendations.  This review will make sweeping recommendations on how the WSIB is funded, or, put into simple terms: experience rating will change; SIEF may go; rates will increase.

The committee will not be addressing worker benefits, only funding. The construction sector will likely face a cost burden that could cripple some employers.

The WSIB Task Force represents the construction industry and has produced a very detailed submission to be presented at a Hearing to take place:

Delta Chelsea
33 Gerrard St. West, Toronto, Ontario
April 28th, 2011 –  2:25 @ p.m.

Please spread the word to encourage others to attend and fill the audience. Details can be found at: http://www.wsibfundingreview.ca/faq.php

If we do not support the Task Force recommendations, the results could be very costly.

The independent third party review is part of the WSIB’s response to concerns about the size of its unfunded liability (UFL). This independent review will consult with the public on ways to make the WSIB a more financially sustainable system for the future. The goal of the funding review is to establish a dialogue and seek input from workers, labour, employers and employer associations on a range of public policy issues relating to the WSIB’s financial future.

Professor Harry Arthurs has been invited to Chair the Funding Review. Professor Arthurs is a former Dean of Osgoode Hall Law School and former President of York University. He has extensive experience as a labour lawyer and mediator and recently led a review of Ontario’s workplace pension system.

Professor Arthurs will be advised by a small committee to provide their insights and varied perspectives on the social and economic issues that arise in the context of Ontario’s workplace safety and insurance system. Members of the Advisory Committee are:

  • Maureen Farrow – is an external advisor on the WSIB Board of Directors’ Investment Committee. She is President of Economap Inc., a Director of the Equitable Life Insurance Company of Canada.
  • Buzz Hargrove – is the former National President of the Canadian Auto Workers. He is currently serving as a Distinguished Visiting Professor at Ryerson University’s Ted Rogers School of Management.
  • John O’Grady – is Chair of the Institute for Work and Health. As a consulting economist, he specializes in labour market and industry analysis.
  • John Tory – is a former leader of the Progressive Conservative Party of Ontario. He is now a broadcaster and volunteer Chair of the Toronto City Summit Alliance.

The Chair of the Funding Review will meet with stakeholder groups and will conduct public hearings across the Province. In addition, interested parties who prefer not to make a public presentation or are unable to attend a session will be able to submit their ideas in writing for improving the WSIBs financial position. The WSIB Funding Review website is also an excellent way to contact the Funding Review. The website address is www.wsibfundingreview.ca or you can email the Review at: questions@wsibfundingreview.ca.

Posted by Guy St-Gelais

Closing the Gap Between Denial and Reality on April 28

Every year on April 28 employers and workers are asked to remember the workers who have lost their lives in the course of their employment. Many employers shudder at this conscious awakening of a nicely suppressed fear and many workers’ do exactly the same.

April 28th is about waking up that shudder and letting it out. It is truly an excellent opportunity to close that gap between denial and reality.

Employers and workers are often lulled into complacency by an “accident-free” history. The price for the wake-up call is very high.

Emotional connection to the impact of workplace injuries and lives lost is a powerful motivator to enhance safety and promote your IRS.

What can you do?

  1. Go to the excellent and informative CCOHS site and either download or request some copies of the poster (above).  http://www.ccohs.ca/events/mourning/poster.html
  2. Ask your Joint Health and Safety Committee to select a few workers whose lives have been lost and ask them to do a brief presentation or find a moving video to present to the whole team on April 28th.
  3. If feasible, provide a brief period of time off to attend this presentation.
  4. Have them link this exercise to your overall health and safety goals.
  5. Employers can also encourage their JHSC and their team to participate in the Steps for Life – Walking for Victims of Workplace Tragedy on Sunday May 1, 2011 (in most communities).  http://www.stepsforlife.ca

Posted by Cézanne Charlebois

Does Bill 160 threaten worker safety

In a recent three-quarter page Toronto Star advertisement, the Canadian Union of Public Employees (CUPE) and the Ontario Compensation Employees Union (OCEU) have complained that the government’s proposed legislation, Bill 160, will endanger Ontario’s workers. Using some selective statistics, the joint advertisement claims that injuries and deaths have decreased since WSIB assumed responsibility for prevention in 1998.

It also claims that Bill 160 would represent an unfair tax load for some employers, apparently ignoring the present unequal burden of prevention costs.

The advertisement also suggests the Ministry of Labour – who is responsible for the Occupational Health and Safety Act – might not be the best place to locate prevention services. Noting that the whole point of the OHSA is to create workspaces that minimize or eliminate work injuries, it is not altogether easy to follow this logic.

It is hard to escape the fear of job losses at the WSIB as the main thrust behind this advertisement. That might be a legitimate and justifiable concern, but from our reading of the proposed legislation, we fail to see the peril that this legislation might introduce to the workplace.

It should be remembered that when Bill 99 created the WSIB, there was great fanfare in the announcement that the new Board would function as ‘an insurance company’. Responsibility for rehabilitation was off-loaded because that was not the proper job of an insurer, we were told. So it might seem to be ironic that when we are in the midst of rehabilitation services returning to the WSIB, they are losing prevention services – something else that never really seemed to jive with being ‘an insurance company’.

Posted by Paul Harris

Human Rights complaint where the complainant alleges wrongdoing by her own father

Christina Farrell was an officer with the Barrie Police Service when she suffered an assault in the workplace that led to a miscarriage. She claims that she was severely beaten after being directly ordered to enter the cell of a rowdy female inmate – known to police as potentially violent – even though she reminded her superior that she was pregnant. Within a few hours of the beating, she began to suffer severe bleeding and miscarried. She further required emergency surgery.

The event is said to have occurred in 2001.

According to a March 17, 2011 article in the Toronto Star, the senior Farrell is said to have told his daughter that if she was smart, she would “just shut [her] mouth, and pretend like it never happened, or it would affect her career as well as look bad on him.”

Farrell also alleges that while she was still a rookie cop, she suffered a sexual assault at the hands of another police officer, allegedly a friend of her father – Inspector Jim Farrell. She says she did not report the incident because the perpetrator was her father’s friend, and because “no female reports sexual harassment in the police without being labelled a rat and being ridiculed for it.”

Farrell specifically lays accusations that her father created a poisoned work environment and alleges that she eventually left the policy force because of stress, which she attributes partly to her “father’s authority on [her] husband”. Her husband, Nathan Bowman, is also an officer on the Barrie force and directly reports to Farrell’s father.

The Farrells have been estranged for several years. There is no indication of why Ms Farrell waited so long to file her complaint, but Barrie Police Services and her father have declined to discuss the case since it is before the Human Rights Tribunal of Ontario.

Posted by Paul Harris

Ontario files consolidated OHSA regulation governing confined spaces

On March 29, the government of Ontario filed amendments to Regulation 632/05 – which is not even scheduled to come into force until July 1, 2011. The newly introduced regulation (O. Reg. 95/11) consolidates the confined space requirements already found in other regulations into the upcoming Regulation 632/05. This affects specific rules already in effect for mines and mining plants, healthcare and residential facilities, industrial establishments, and construction projects.

However, the amended Regulation 632/05 maintains the distinction between confined spaces provisions for construction projects and those that apply in other workplaces.

Contact Workplace Health and Safety Network for any assistance required in preparing for the new rules.

Posted by Paul Harris

WSIB Adjudicator sees the light

In a blog posted here March 9 by Cézanne Charlebois, we advised of an adjudicator who refused to reconsider her entitlement decision, even in the face of incontrovertible proof that the worker had fabricated a story. There was video evidence and telephone records to prove that he was not where he claimed to be – in fact, nowhere near it – when he alleged to have sustained a workplace injury. He simply could not have injured himself as he claimed. This information had already been provided to the adjudicator by the employer, but she refused to consider it or to reconsider once she had made her ruling.

The employer felt so strongly about this injustice that they incurred the expense of hiring a lawyer. They, as we, also believed the worker needed to be held accountable for what was clearly an attempt to misrepresent.

We made a detailed submission to WSIB and we are pleased to report that the adjudicator relented and agreed to reconsider her decision. Further, the evidence presented was so persuasive that she reversed her initial ruling and has withdrawn WSIB entitlement from this worker.

In our eyes, the worker is guilty of violating s.149 of the Workplace Safety and Insurance Act and should face charges accordingly. That fight is still to come, but we have the satisfaction of knowing that his employer is not facing the costs of what amounted to a fraudulent claim.

Posted by Paul Harris

Bill 160 update

On March 3, 2011, the Ontario government introduced Bill 160, an act to amend the Occupational Health and Safety Act (OHSA) and the Workplace Safety and Insurance Act (WSIA).  The Bill’s primary intent is to remove from the WSIA (and, thus, from the Workplace Safety and Insurance Board) oversight for health and safety certification and training. There is also the intent in the Bill to create a Prevention Council and a Chief Prevention Officer under the OHSA, although details are scant about what those would be expected to accomplish and how they would be funded (currently, certification and training is funded by WSIB).

One interesting proposed amendment to the WSIA would see WSIB paying construction workers for their time off work while fulfilling the requirements to become certified under the OHSA.

On March 29, the Bill passed Second Reading, entirely unedited, and was referred to the Standing Committee on Social Policy. Interestingly, the Second Reading vote was 73-6 in favour of the Bill as written, which means 28 MPPs didn’t show up for the vote.

The Standing Committee is empowered to study and report on all matters relating to the mandate, management, organization or operation of the ministries and offices which are assigned to it as well as the agencies, boards and commissions reporting to such ministries and offices. Any proposal from a member of this Committee must be adopted by at least two-thirds of the members of the committee, excluding the Chair. The Committee currently has nine members, six of whom are Liberal MPPs.

Posted by Paul Harris