Worker who developed anxiety over oh&s fines reinstated after almost 10 years

TORONTO (Canadian OH&S News)

Penalties for workplace safety violations in Ontario are harsher than any other province in the country, threatening employers and supervisors alike with thousands of dollars in penalties at the least, and jail time for the most egregious of errors.

A recent decision from the province’s Human Rights Tribunal dealt with an employee of the Hamilton-Wentworth District School Board who had developed anxiety over her fear of being charged under the Occupational Health and Safety Act and was subsequently fired after going on sick leave.

In a tribunal decision from March 14, Sharon Fair was awarded salary payments dating back to June of 2003, as well as a position with the school board and to have her seniority adjusted accordingly. With benefits, expenses and pension contributions, it will amount to more than $400,000. Adjudicator Kaye Joachim also awarded Fair $30,000 as compensation for the injury to her “dignity, feelings and self-respect,” ruling the decision to fire Fair was discrimination.

The school board is appealing the decision and would not comment while it was under judicial review, confirmed spokesperson Jackie Penman.

In 1994, Fair became supervisor of the school board’s asbestos control team after working with the board since 1988. She was formally diagnosed with an anxiety disorder in January of 2002 after taking a leave of absence from work three months prior.

“Her disability was 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,” wrote Joachim in her decision from February last year. “The applicant reports that the Ministry of Labour was critical of the respondent’s handling of its asbestos removal projects and that she, as the supervisor of these projects, was personally threatened with a substantial fine.”

After Fair was given the all-clear to resume work in a different capacity — specifically, one that did not involve the threat of oh&s fines — the school board claimed it was unable to find a suitable position for her and she was fired in July of 2004.

“As soon as [the school board] received confirmation from its own expert that the applicant was unlikely to ever return to her pre-absence position, instead of considering her for alternative positions, it terminated her employment,” Joachim wrote.

Doctor’s recommendation would restrict her from any job

The school board’s physician, who examined Fair, stated that she could not function in a job that entailed a responsibility for health and safety issues, or any duties that could put her at risk of personal liability — a restriction that, Joachim said, “would disqualify the applicant from all employment” if taken literally.

In reinstating Fair to her prior position, Joachim wrote that the sole medical restriction on employment would be that the position should not involve exposure to personal liability for worker health and safety “to the potential liability caused by working with asbestos.”

Matt Blajer, a spokesperson for the Ontario Ministry of Labour, said that the ministry was only recently made aware of the tribunal’s decision. The ministry was in the process of reviewing the decision at press time, he said, and therefore could not comment on any aspect of it.

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