WorksafeBC: What to expect and dealing with orders or penalties

WorkSafeBC is at my worksite. What should I expect?

WorkSafeBC inspections are performed by prevention officers. Prevention officers are either safety officers or hygiene officers. In either case, the officers inspect to determine if the employer is in compliance with the Workers Compensation Act, the Occupational Health and Safety Regulation, and associated policies.  

During the inspection, the officer will ask to be shown around the worksite, and may ask to be shown specific locations, and to see documents. You are required to assist the officer during the inspection. However, if at any point you are advised by a WorkSafeBC officer that they are conducting an “investigation” or that any evidence gathered may be used in court, advise the officer that you would like to speak to a lawyer before you do anything else.

How can I make sure I’m prepared for an inspection?

Taking a proactive approach to safety and compliance is the best way to be prepared for an inspection. This includes: 

  • Having policies and procedures addressing safe work practices in your workplace; 
  • Being up to date with your worker training, including new any young worker training;
  • Making sure your workers know their rights, including the right to report unsafe working conditions and to refuse to perform unsafe work; 
  • Addressing safety concerns that are raised; and
  • Making sure management, supervisors, and workers know what is required under the statutes for your workplace. 

Further, employers should know where WorkSafeBC will be focusing their inspections. WorkSafeBC has inspectional initiatives that focus on certain industries and specific violations within that industry. These initiatives are often a part of WorkSafeBC’s “high risk strategies”, which WorkSafeBC develops in each of the following sectors:

  • Construction
  • Forestry
  • Health Care
  • Manufacturing

In addition to the high risk strategies, WorkSafeBC develops “industry initiatives” each year. Where an employer should focus and prepare will depend on which of the above strategies or initiatives applies.

What are the most common orders?

The most common orders vary by industry. For example, in residential construction, the most common violation orders and penalties are for failure to comply with “fall protection” requirements. This is particularly true in the roofing sector. In contrast, in manufacturing, one of the most common violations is for failure to “lockout” equipment before work is performed on that equipment. Knowing the most common orders for your industry can help you identify where you may want to focus to prevent similar orders; it also tells you where WorkSafeBC officers are focusing. 

Across all industries, however, WorkSafeBC officers often issue violation orders for the “general duty” sections under the Workers Compensation Act. For employers, this means section 115 of the Act, which imposes broad obligations on employers to ensure the health and safety of workers, including another employer’s workers. These orders are problematic, as they can be written for dramatically different underlying issues, but may be counted as “repeat” violations or penalties. 

What do I do with a WorkSafeBC order?

After an inspection, the WorkSafeBC officer will send you an “inspection report”. That inspection report will often have one or more orders in it. Those orders will require you to take steps to comply. The officer will also ask you to submit a “notice of compliance” by a certain date. In that notice of compliance, you will need to explain what you have done to comply with the orders. 

During this time, the WorkSafeBC officer may also be considering issuing a penalty for the violation(s). Do not assume that just because the officer has accepted your steps to comply that he or she is not going to issue a penalty. 

If you receive an order or a penalty, you have a right to request a review. That request must be submitted to WorkSafeBC within 45 days.

Are you facing a WorkSafeBC order or penalty? Contact us.

Why is WorkSafeBC considering a penalty?

WorkSafeBC may issue a penalty against an employer any time there is a violation of the Occupational Health and Safety Regulation or the health and safety provisions of the Workers Compensation Act, or there is non-compliance with an order of a WorkSafeBC officer. 

WorkSafeBC officers are required to consider a penalty in certain circumstances. The most common circumstances include:

  • There is a “high risk violation”, or
  • The employer has previously violated the same section of the Regulation or Act.

When is an incident “high risk”?

An incident will be “high risk” either because it falls into one of six pre-determined violations, or because it meets certain criteria. 

WorkSafeBC has deemed the following violations to be “high risk violations”:

  1. Entry into an excavation over 1.2 m (4 feet) deep contrary to the requirements of the Regulation.
  2. Work at over 3 m (10 feet) without an effective fall protection system.
  3. Entry into a confined space without pre-entry testing and inspection to verify that the required precautions have been effective at controlling the identified hazards.
  4. Causing work disturbing material containing asbestos, or potentially containing asbestos, to be performed without necessary precautions to protect workers.
  5. Hand falling or bucking without necessary precautions to protect workers from the tree that is being felled or bucked, or other affected trees. 
  6. Work in the vicinity of potentially combustible dust without the necessary precautions to protect workers.

A violation not on the above list may still be considered to be high risk, if it meets certain criteria. The high risk criteria involve assessing both the likelihood of a worker injury or illness occurring from the violation and likely seriousness of the resulting injury or illness.

What are “repeat violations”?

A repeat violation is any violation of the same or similar section by the same employer. The clearest example of a repeat violation is when an employer is cited for having violated the exact same section of the Regulation. However, WorkSafeBC may also consider an employer to have committed a repeat violation even if a different section was cited as being violated. WorkSafeBC may do so when the underlying incidents were sufficiently similar.

Why is WorkSafeBC asking me about "due diligence"?

Before WorkSafeBC issues you a penalty, an officer will send you a “request for due diligence”. It is important to carefully craft your response to this request. Some things to keep in mind:

  • Do not admit to the violation; without a violation, there can be no penalty, and any admission may harm your later efforts to dispute a penalty, if issued; 
  • Due diligence means the reasonable steps taken before the violation to avoid it. If you intend to show that you exercised due diligence, you need to focus on what you did before, not after, the violation. What you did after may still be relevant to whether a penalty is appropriate, but it is not due diligence. 
  • Due diligence can also include a mistaken set of facts that, if true, would have made the steps you took reasonable to prevent the violation. 

Consider consulting a lawyer to assist in drafting the response; avoiding a penalty here can be far cheaper than trying to contest a penalty once it is issued.

How are penalty amounts set?

After hearing your due diligence submissions, if any, WorkSafeBC will then decide if it is going to issue a penalty. If it does, WorkSafeBC policy determines how it is calculated. 

First, the policy requires that the penalty be based on the employer’s payroll for the year before the incident. For example, if the incident that results in the penalty takes place on February 2018, WorkSafeBC will calculate the penalty using the employer’s 2017 assessable payroll. The penalty is calculated as 0.5% of that amount. 

Penalties may also be multiplied, resulting in far higher amounts. Multipliers include where the penalty was for a high-risk violation, was intentional, or where there are prior penalties.

What can I do to avoid a penalty?

The primary preventative step for avoiding penalties for any employer is exercising due diligence before an incident occurs. Due diligence works in two ways:

  • First, it reduces the risk of a violation or incident occurring, by ensuring that the employer takes all reasonable steps to comply with the Act and Regulation and to keep workers safe; and
  • Second, due diligence is a defence against any penalty that may be considered in the event that an incident or violation does occur.

Where a violation has occurred, you should work proactively to demonstrate your efforts to address any issues identified by WorkSafeBC or others. WorkSafeBC is required to consider whether or not a penalty is necessary to motivate you to come into compliance. While that is not the only factor, a proactive employer who takes safety and compliance seriously after an incident is in a better position to avoid a penalty than an employer who is slow to act.  

What are the real costs of a penalty?

A penalty is measured in dollars, and often employers see smaller penalties as not being worth contesting. However, penalties have hidden costs that should be taken into account when deciding whether or not to request a review. 

First, once an employer has a penalty, each additional penalty for the same or similar violation, within 3 years, will be doubled. This exponential effect of each penalty means that any one penalty being successfully appealed can have a significant cost savings down the road. 

For example, an employer that has a reasonable ground to appeal a $5,000 penalty may determine the amount is not worth appealing. However, a second penalty will be $10,000, and a third will be $20,000, for a total of $35,000. If the second and third penalties have stronger evidence to support them, the chances of winning on a review will be lower. Had the employer contested the first penalty, then the second penalty would have been $5,000, and the third only $10,000, for a total savings of $20,000. In that scenario, appealing a $5,000 penalty is not just about saving $5,000, it’s about reducing the risk of higher penalties down the road. 

Second, penalties can affect how much you pay in insurance premiums. Many employers are eligible for what is called a “certificate of recognition” program, which entitles an employer to up to 15% off their WorkSafeBC premiums. However, if you have a penalty, you can be barred from the program for a period of time. 

Third, employers with too many penalties may be taken to court. WorkSafeBC has recently been filing petitions against employers and their directors, seeking injunctions. Once obtained, these injunctions can lead to findings of contempt, with even stiffer penalties. 

Based on all of the above, any employer that receives a penalty should consider requesting a review.

Are you facing a WorkSafeBC order or penalty? Contact us.

How do I appeal a WorkSafeBC order/penalty?

Any time you are issued an order or a penalty, you may request that it be reviewed. These requests must be made within 45 days of the decision being reviewed. 

To request a review, you need to complete WorkSafeBC's "Request for Review" form and submit it to WorkSafeBC.

Who reviews the order/penalty?

Reviews of orders and penalties are handled by WorkSafeBC’s Review Division. Within the Review Division, your review will be assigned to a Review Officer. Most Review Officers are lawyers. Review Officers work for WorkSafeBC, and are required to follow WorkSafeBC’s policies.

Once you request the review, Review Division will require that you show that you have notified your workers of the review. 

Next, WorkSafeBC will send you all of the documents WorkSafeBC has related to your matter. If you disagree that all of the documents have been sent to you, you will need to demand further documents from WorkSafeBC. 

WorkSafeBC will then ask that you prepare written submissions outlining why you think the decision under review should be changed. These written submissions will be provided to the Officer that made the decision, who has an opportunity to respond. You will then have one final opportunity to respond to what the Officer has added, if anything. 

Do I have to pay the penalty/comply with the order before the review is finished?

You are required to comply with WorkSafeBC orders and pay the penalty, if any, even if you request a review. If you do not wish to comply with the order or pay the penalty while the review is underway, you will need to request a “stay” of the decision. Review Division will only grant these stays in limited circumstances, so it is important that you carefully consider any request.

Will I need a lawyer?

Many employers review orders and penalties without retaining a lawyer. 

However, you may want to have a lawyer represent you to ensure that you correctly identify all the legal issues in your case. While most matters that go to the Review Division do not get appealed further, employers can appeal Review Division decisions. For example, employers can appeal Review Division decisions on penalties to the Workers Compensation Appeal Tribunal (“WCAT”). Employers can also take both penalties decisions from WCAT and order decisions from Review Division to the British Columbia Supreme Court in what is called a “judicial review”. 

In 2014, the British Columbia Court of Appeal decided that you must raise any legal issues, including any challenges you wish to make under the Charter of Rights and Freedoms, at the Review Division. If you fail to do so, the court can refuse to hear those issues when you get to court on a judicial review. Accordingly, if you think the matter under review may make it to court, you will need to know what issues may be raised there. A lawyer can assist with that.

Can a lawyer handle my review for me?

Yes. You may retain a lawyer to act as your “authorized representative”. WorkSafeBC will then deal with that lawyer on the review. 

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Graeme Hooper

604.639.2565

graeme@ascendionlaw.com

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