Employees have options for workers' compensation – but there are limits
Trying to keep track of all of an employer’s obligations is enough to make an HR professional’s head spin.
There are employment standards rules, common law notice of termination considerations, occupational health and safety obligations, workers’ compensation, accommodation… the list seems to go on and on. And there are several fronts upon which an employee can launch a legal action, which can also be hard to keep track of.
However, one possible source of some peace of mind is that, generally, employees can’t pursue an action on multiple fronts for the same thing.
For workers’ compensation, it’s common ground and fairly clear that the regime exists to protect workers who may be injured at work and allow employers some certainty in costs if a worker is hurt and unable to work. The trade-off, which is a fundamental part of workers’ compensation schemes, is that in most circumstances it precludes employees – but not non-employees - from launching a civil action against their employer in relation to a workplace injury.
Think of it as a no-fault insurance policy in which employers pay a premium through worker’s compensation payments. Not that it always prevents employees from trying.
Workers’ compensation scheme
Recently, an Ontario worker sued the owner of the building where her employer was located after she fell in the parking lot and injured herself. The injury was deemed to be work-related and she didn’t sue her employer, so perhaps it seemed appropriate. But no, there were a couple of catches. The building owner was a company related to the employer and they shared some employees. Since the building owner had at least one employee and was in property management, it fell under Schedule 1 of the Ontario Workplace Safety and Insurance Act – which prevents employees from suing not just their employer, but any Schedule 1 employer in relation to a workplace injury.
Learn how to protect yourself from workplace injuries may happen in this article.
But it’s not always workers’ compensation claims that can preclude other legal actions. Generally, employees can’t pursue different legal actions based on the same facts or events. Recently, an Ontario worker found this out when they made a human rights complaint alleging that their employer discriminated against them because of a disability. The worker also launched a civil claim for constructive dismissal from mistreatment and unlawful termination. The human rights tribunal dismissed the complaint because the civil action sought damages arising out of essentially the same thing – the employer’s mistreatment of the worker.
Part of the reasoning the tribunal gave in dismissing the above case was that risk that the overlap between the actions would lead to inconsistent finding on the same facts. It’s also important to note that, in Ontario in particular, courts have the power to award damages for human rights breaches under the province’s Human Rights Code, if someone makes them part of their civil claim. It doesn’t happen a lot, but one Ontario employer was ordered to pay $20,000 to a worker fired in a restructuring after she didn’t agree to a return-to-work plan following a medical leave. The court noted that the worker lost the right to be free from discrimination and was not accommodated.
Health and safety rights
Sometimes, employees take the occupational health and safety route to make a complaint. Which is fine, if it’s actually related to them exercising rights under OHS legislation. But if not, it’s not likely to succeed. Which is what happened to an Ontario nurse who made a complaint of reprisal under the province’s Occupational Health and Safety Act when she was fired after making a complaint of bullying and harassment.
The Ontario Labour Relations Board found that the complaint wasn’t related to exercising any rights under the act and the worker would have to take her complaint to another forum to address the alleged harassment and bullying – likely the courts or a human rights tribunal if there was potentially a discriminatory element involved.
The are many roads that employees – and employers – can take to stand up for their legal rights. But they need to know the right road to take, because for the most part, they can only pick one and stay in their lane.
