1. The Importance of Reporting
OSSTF HSWSIA Conference 2015
Susan Kirby and Kim Appel

2. Stumbling blocks to reporting Preparing to report Data
Agenda
The law
Reporting forms
Stumbling blocks to reporting
Preparing to report
Data
Data in a WSIA claim
Where to get help
Resources and references

3. The Law
The Occupational Health and Safety Act Section 51 says:

4. Duties of employer constructor, or mine or mining plant owner
If workplace injuries or illnesses occur, the above must notify certain people:
If a person, whether a worker or not, has been critically injured or killed at the workplace, the employer and the constructor, if any, must immediately notify the Ministry of Labour Health & Safety Contact Centre, the joint health and safety committee (or health and safety representative) and the union, if there is one. This notice must be by telephone or other direct means. Within 48 hours, the employer must also notify, in writing, a director of the Ministry of Labour, giving the circumstances of the occurrence and any information that may be prescribed [section 51(1)].

5. Section 52 Duties of Workers
Workers play a key role in health and safety at the workplace.
Workers have various duties under the Act. Under the Act, a worker must:
work in compliance with the Act and regulations [clause 28(1)(a)]
use or wear any equipment, protective devices or clothing required by the employer [clause 28(1)(b)]
report to the employer or supervisor any known missing or defective equipment or protective device that may endanger the worker or another worker [clause 28(1)(c)]
report any hazard or contravention of the Act or regulations to the employer or supervisor [clause 28(1)(d)]

6. Section 52 continued
Duties of employer constructor, or mine or mining plant owner
If an accident, explosion or fire occurs, or if there is an incident of workplace violence, and a person is disabled or requires medical attention, the employer must notify the joint health and safety committee (or health and safety representative) and the union, if any, within four days of the incident. This notice must be in writing and must contain any prescribed information [section 52(1)]. If required by an inspector, this notice must also be given to a director of the Ministry of Labour.

7. Section 53
Duties of employer constructor, or mine or mining plant owner
Even if no one is hurt, written notice of an accident or unexpected event that could have caused an injury at a construction site or in a mine or mining plant is required from the constructor of the project or owner of the mine or mining plant. This notice must be given to a director of the Ministry of Labour, the joint health and safety committee (or health and safety representative) and the trade union, if any, within two days and must contain any prescribed information [section 53].

8. Reporting Forms

9. Sample incident report to employer

10. If medical attention is required then a Form 8 will be filled out by the attending physician if you let them know that this was an injury suffered at work.

11. The employee after filling out the employers incident accident report form should also fill out a Form 6 for the WSIB.
The employer files a form 7
to the WSIB.

13. Safe Schools incident reports may also be appropriate to complete as well.
The education act outlines activities leading to possible suspension.
306. (1) A principal shall consider whether to suspend a pupil if he or she believes that the pupil has engaged in any of the following activities while at school, at a school-related activity or in other circumstances where engaging in the activity will have an impact on the school climate:

14. Uttering a threat to inflict serious bodily harm on another person.
Possessing alcohol or illegal drugs.
Being under the influence of alcohol.
Swearing at a teacher or at another person in a position of authority.
Committing an act of vandalism that causes extensive damage to school property at the pupil’s school or to property located on the premises of the pupil’s school.
Bullying.
Any other activity that is an activity for which a principal may suspend a pupil under a policy of the board.  2007, c. 14, s. 4.

15. Section 310 Suspension, Investigation and Possible Expulsion
Activities leading to suspension
310. (1) A principal shall suspend a pupil if he or she believes that the pupil has engaged in any of the following activities while at school, at a school-related activity or in other circumstances where engaging in the activity will have an impact on the school climate:
1. Possessing a weapon, including possessing a firearm.
2. Using a weapon to cause or to threaten bodily harm to another person.
3. Committing physical assault on another person that causes bodily harm requiring treatment by a medical practitioner.
4. Committing sexual assault.
5. Trafficking in weapons or in illegal drugs.

16. Sec. 310 continued 6. Committing robbery.
7. Giving alcohol to a minor.
7.1 Bullying, if,
i. the pupil has previously been suspended for engaging in bullying, and
ii. the pupil’s continuing presence in the school creates an unacceptable risk to the safety of another person.
7.2 Any activity listed in subsection 306 (1) that is motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, gender identity, gender expression, or any other similar factor.
8. Any other activity that, under a policy of a board, is an activity for which a principal must suspend a pupil and, therefore in accordance with this Part, conduct an investigation to determine whether to recommend to the board that the pupil be expelled.  2007, c. 14, s. 4; 2012, c. 5, s. 14.

18. Behaviour safety plans will also be updated but only if workers report the issues and changes in behaviour of their charges.
Reporting and documentation is the key to creating change.

19. Stumbling blocks

22. Planning ahead makes reporting much easier.

23. Failure to plan ahead can be addressed in three easy steps.
Lack of time
Fear of reprisals
Failure to plan ahead can be addressed in three easy steps.
Know what forms you are required to fill in, where to find them, who needs to receive copies and the timelines for reporting.
Employees are guaranteed to protection from reprisals under the act.

24. Have several copies of the incident
accident report partially filled out to save time.
Workplace reps can copy and place several copies of the form onto the central health and safety board for their site.
Have a hyperlink ready to go for staff on the employer website and on internal mail systems.
Provide the name of your health and safety rep on-site and have your branch president names suggested as people to go to if you need help filling it out.

25. Ontario’s Occupational Health and Safety Act (OHSA) provides workers with rights and responsibilities. It prohibits employers from penalizing workers in reprisal for obeying the law or exercising their rights.
Under Section 50 of the OHSA, an employer cannot
dismiss (or threaten to dismiss) a worker
discipline or suspend a worker (or threaten to do so)
impose (or threaten to impose) any penalty upon a worker, or
intimidate or coerce a worker…
… because a worker has
followed the OHSA and regulations
exercised rights under the OHSA, including the right to refuse unsafe work
asked the employer to follow the OHSA and regulations.

26. A worker also cannot be penalized for:
providing information to a Ministry of Labour inspector
following a Ministry of Labour inspector’s order, or
testifying at a hearing about OHSA enforcement
in court
before the Ontario Labour Relations Board
at a grievance arbitration, and
at a coroner’s inquest

27. A worker who believes that the employer has reprised against him or her may file a complaint with the Ontario Labour Relations Board (OLRB). A unionized worker may choose to ask the union to file a grievance under the collective agreement or to seek its help in filing a complaint directly on the worker’s behalf with the OLRB. OR
a worker claiming to have been fired in an OHSA-related reprisal may consent to having a Ministry of Labour inspector refer the reprisal allegation to the OLRB, ifthe allegation has not already been dealt with by arbitration, and the worker has not filed a complaint to the OLRB.

28. The inspector will also provide copies of the referral to the employer, trade union (if any) and other organizations affected by the alleged reprisal.
The Ministry of Labour will also investigate the health and safety concerns related to a reprisal complaint or referral.
The OLRB can look into a worker’s complaint or a referral from the Ministry of Labour and try to mediate a settlement between the workplace parties. If a settlement cannot be reached, the OLRB may hold a consultation or hearing.

29. The OLRB can look into a worker’s complaint or a referral from the Ministry of Labour and try to mediate a settlement between the workplace parties.
If a settlement cannot be reached, the OLRB may hold a consultation or hearing.
The OLRB may make orders to remove or change any penalty the employer may have imposed reinstate/rehire the worker, and/or compensate the worker for related losses.

30. Reporting in any of the above ways creates a record.
Records are very useful in not only addressing the unsafe situation in the first place but also in protecting the worker’s rights to fair treatment after the complaint, appropriate accommodations and possible benefits should the employee require time from work under the WSIB system for lost wages and to cover expenses for treatment.
As records are created they can be used to assist others in issues surrounding health and safety as they can be compiled and compared and used to identify trends, hazards and gaps in policy and procedures for creating safe workplaces.

31. But it was minor!
It is extremely important to report incidents right away, no matter how minor it may be. Even if the injury is minor or if there is no initial injury and you feel it is not worth reporting, the incident must be documented. Minor injuries can worsen over time and become more of an issue, or an ergonomic injury can become apparent several days or months after the initial cause.
If this happens and there was no report of the incident, it may be difficult to argue that it happened at work. Reporting an incident right away allows for corrective action to be taken sooner, possibly preventing others from becoming injured and ensure the details are accurate as the event will still be fresh in your mind.
Paper cuts, staple sticks, unexplained headaches, exposure to ill students/scents all should be reported.

32. Keep Copies!
Keep copies of all documents for yourself every time you report an injury or hazard to the employer.
Paper and or electronic copies are fine – both is better!
Encourage members to share this information with their district/bargaining unit leadership so that they may provide assistance and support and so that the union JHSC activists are aware of the issues for their members that they represent at the committee level.

33. Joint Health and Safety Committee
The members of your Joint Health and Safety Committee review injury reports, near misses and critical incidents that occur in the workplace to ensure that: hazards are being addressed; appropriate training for workers is occurring; and that new hazards which may be present has policy and procedures developed for the prevention of adverse effects on workers in the workplace.
If workers do not report what may seem as even little things then the prevention aspect may be lost and more serious accidents may and will occur had action been taken when the hazard or situation was first noticed.

34. Data from reporting of incidents is important!
Spot trends
Make recommendations that are successful to the employer
Educate others (WHSC hazard alerts- Workers Health and Safety Centre)
Trigger discussions for prevention and addressing hazards in workplaces
Data may signal a need for new programs for training WSIB, political responses to issues surrounding labour by labour activists (MOL-Ministry of Labour) and for encouraging research into an injury/occupational disease (OHCOW- Ontario Health Clinic For injured Workers)
Industry responds to health and safety statistics by adapting and inventing new products to serve the market place.
Assist in getting the MOL to write an order to compel the employer to act.
Without data many of these activities do not/may not occur.

35. Compiling statistics
Data as evidence

36. Proving the issue
Most of us have had difficulty convincing an employer a problem exists in the workplace. Using your accident and near misses data you should be able to effect change more easily in your workplace.
Data will also be useful when you need to assist a member with a WSIB claim for lost time and for the costs of treatment.
Having accurate data and all paperwork associated to the incident/s as well as any relevant data/statistics may help you establish that the cause of the injury or condition is work related.

37. WSIB Operational Policies
Establishing work relatedness
Adjudication Principles
Decision-Making
Document No.

38. Policy
The WSIB determines a worker’s entitlement to benefits and communicates decisions to the relevant parties.

39. Information required to make decisions
Under the Act, workers, employers, and health care practitioners must provide the WSIB with information for the purpose of determining entitlement to benefits. If the information requested is not received, the WSIB makes a decision based on available evidence, and notifies the relevant parties.

40. Entitlement decisions
In the absence of:
information from the worker, the WSIB makes an entitlement decision using information from the employer, and clinical information. If the information is insufficient to make a decision, the WSIB contacts the worker requesting more information. If there is no response, the WSIB makes a decision that the worker has abandoned the claim (see  , Worker’s Requirement to Claim and Consent)
information from the employer, the WSIB makes an entitlement decision using worker and clinical information (see  , Employers’ Initial Accident-Reporting Obligations)

41. In the absence of:
information from the health care practitioner, an entitlement decision is made using information from the worker and employer, with advice from WSIB medical consultants (see  , Health Care Practitioner’s Reports)
information from the worker and employer, an entitlement decision cannot be made
information from the employer and health care practitioner, an entitlement decision can be made using the worker information with advice from WSIB medical consultants.

42. Josephine is employed as an educational assistant
Josephine is employed as an educational assistant. She has developed a very bad knee problem and is making a claim for WSIB due to lost time /wages from work and for the costs she is incurring for treatment from her health care providers (Chiropractor and Massage therapists).
Josephine says that this started at work after she twisted her knee one day while assisting a student in the Snoozelen room to lay down and stretch out on the floor mats. In addition, she needed to pick up the fuzzy caterpillar from the mats, as well as some loose papers left in the room on the floor.

43. She cannot remember the exact day and did not report it initially as she thought it would get better after a day or two of rest and some anti-inflammatories. She is pretty fit and did not seek immediate medical treatment . The knee did not get better and now she is in regular pain and cannot bend down. She is very upset because she can no longer play hockey as her fitness and recreation activity as well as being limited at work with her movements and the associated costs of going to health care treatment appointments.

44. She reports after three months that this occurred, there were no witnesses. She does not call WSIB when they call looking for additional details as she was going through a separation and having a hard time juggling work and parenthood as well as looking after herself.
What happens?

45. Getting Help with a Claim or Injury for a Union Member
For an injury claim or with a WSIB claim contact your District /Bargaining unit person responsible for health and safety and member benefits/grievance officer.
You may also contact your field secretary of OSSTF for advice.
Jane Ste. Marie - Health and Safety OSSTF
OHCOW - Occupational Health Clinics for Ontario Workers (Excellent research, ergonomists hygienists available to assist with workplace issues and to provide advice or information.)
WSIB- Workers safety Insurance Board will provide information about the process.
MoL- Ministry of Labour will provide information about the reporting process and about addressing hazards in the workplace.

46. Josephine’s claim was denied because she did not report in a timely fashion and proof of work relatedness was not able to be determined. The adjudicator decided that it was likely caused by a re-injury of an old hockey injury she had as an employer administrator gave a written statement that indicated that Josephine had taken a bad hit during a game sometime in the previous month (when Josephine’s injury allegedly incurred) and that the admin knew about it as she played on the opposing team. Josephine’s physician supplied the documentation she had on Josephine related to her legs and knees and it showed that Josephine had injured her knee about three years prior with the likely cause being a “hit” during hockey.

47. Josephine called her union office and asked them to appeal and the union supplied evidence of several incidences of educational assistants suffering knee and ankle injuries at this employer’s workplace.
The union also introduced evidence of the “get on their level” policy created by the employer which requested educational assistants to get to eye level with students whenever possible to improve inclusion and “student voice” and shared the correspondence documenting the concerns the union had about this policy and the possibility of injuries being more frequent.

48. Housekeeping and health and safety concerns as written up by the on site rep. and the joint health and safety committee regarding the policy and the lack of appropriate cleaning/tidying on this site and others (due to the employer not replacing caretakers when absent on a regular basis and a lack of training for the casual caretaking staff that are called only after 10 days absence) were also presented.
Result???
Fictional account but could go either way. Would have gone through the first time likely if she had reported it promptly and sought immediate medical attention.

49. Resources/References
Ministry of Labour
Occupational Health and Safety - guide
- act
OSSTF
OHCOW -Occupational Health Centre for Ontario Workers
WSIB- Workplace Safety Insurance Board
WHSC- Workers Health and Safety Centrehttps://
Ontario Education Act-