Prohibited Action Complaints (PACs) by employees to WorkSafeBC have become increasingly common. PACs are notoriously difficult to defend, even where the complaining employee has not actually been wronged, therefore employers are well advised to be informed of how to avoid them.
‘Prohibited action’ has a specific meaning in this context, and means retaliation, or threat of retaliation, against a worker because the worker raised a workplace health or safety concern. The following are examples of such retaliatory action:
Suspension, layoff, dismissal
Demotion or loss of opportunity for promotion
Change of location of workplace or hours
Reduction of wages
Coercion or intimidation
Imposition of discipline, reprimand or any other penalty
The reason PACs are difficult to defend is because of the reverse onus imposed by the Workers Compensation Act. When WorkSafeBC assesses a PAC, the worker's allegations of a prohibited action are generally accepted as true, and the employer must prove it did NOT act for any reason related to the worker raising a health or safety concern. This is very different, for instance, than the legal test in criminal law of 'innocent until proven guilty'.
Let’s take the following example as illustrative: An employer is having ongoing and persistent performance issues with an employee. On Monday, the employee refuses to perform certain work, alleging a co-worker has a ‘virus’ and claiming that working quarters are too close. On Wednesday and Thursday, the employee has more performance issues unrelated to the employee’s safety concerns. On Friday, the employee engages in misconduct, causing an irreversible and significant business loss. The employer decides to terminate the employee, providing the employee the full pay in lieu of notice required under the valid written employment agreement. However, the employee files a Prohibited Action Complaint with WorkSafeBC, claiming that his termination was at least in part due to him refusing to work near a co-worker who he alleged had a virus.
In order to successfully defend the PAC, the employer will need to prove that its decision to terminate the employee was in no way, whether in whole or in part, due to the employee raising a safety concern. This is commonly known as the ‘taint principle’ and has been described by WCAT (the Workers Compensation Appeal Tribunal) as follows [WCAT #2002-0458]:
“The taint theory stands for the proposition that safety considerations need not be the only or dominant reason for the employer’s action, but rather, it is sufficient if it is one of the employer’s actions under review…”
With respect to the above example, it should be noted, too, that because the termination occurred in close proximity to the employee's safety concern, a causal connection may be implied by WorkSafeBC. In the event the employer is unable to succeed in proving that no part of the decision to terminate was related to the safety concern, WorkSafe has the power to reinstate the employee. This remedy is available even where the employer paid the severance due to the employer pursuant to the valid employment contract.
In addition to having the power to reinstate, WorkSafeBC can also order employers to pay compensation for lost wages and worker out-of-pocket expenses. The costs to employers of defending PACs can also be high, including the time needed to defend such actions and legal costs. As an additional issue, WorkSafeBC publishes PAC decisions on their website and PACs often cause negative effects on morale and workplace culture.
There are a number of things employers can do to guard against a successful PAC (even if they cannot always prevent employees from filing PACs). The first step is to be aware of PACs, and associated risk factors, in order to anticipate where one may become an issue. Employers are best to be aware, as well, that safety is important to business. Performance concerns, in addition to safety issues, should be documented carefully.
For instance, in the above example, the employer would have been in a good position had it given proper written warnings of the performance concerns before the safety issue was raised, and recorded its good faith investigation of the employee safety concern.
Employers are well advised to obtain legal advice on how to best to carry out performance management and safety investigations of any type. We have experience and are happy to help with preventing PACs and conducting effective discipline, including terminations.