If you have been discriminated against because you have asked your employer to comply with the provisions of the Occupational Health and Safety (OHS) Act, you can request an arbitration to resolve the matter free of charge. An arbitration is a dispute resolution process provided by the Act and administered by WorkSafeNB.
Let's suppose you have exercised your right to refuse dangerous work, and your employer has responded by suspending you. If you want to have the suspension revoked, you have one year from the date of the incident to initiate an arbitration. To do so, you must contact WorkSafeNB and complete a complaint form outlining the dispute.
For example, if an employee were to tell their employer that a machine needs to be guarded and the employer punishes the employee for demanding this by suspending the employee for a day, that employee can complain to WorkSafeNB, and an arbitrator will be appointed to resolve the matter.
You must complete a complaint form (Form 1) that gives WorkSafeNB details of what occurred. You can get this form by speaking with a health and safety officer or calling WorkSafeNB at 1 800 222-9775.
You must file a complaint within one year of the incident.
Once your complaint had been received, an independent arbitrator is appointed from a WorkSafeNB board-approved list. The arbitrator is not an employee of WorkSafeNB, but a qualified lawyer with experience in labour law and an understanding of workplace issues.
Once an arbitrator has been appointed, a hearing will be scheduled. It can be conducted in either official language, and all possible measures are taken to hold it in your city or town. The hearing allows the arbitrator to gather the evidence they need to make a decision in the dispute. It is a lot like a courtroom trial, but much more informal. Although it is not necessary, you or your employer may choose to be represented by a lawyer at the hearing. This is a voluntary cost that is not covered by WorkSafeNB or by legal aid, and must be paid for by the individual doing the hiring.
The hearing follows a straightforward format. As the complainant, you tell the arbitrator your side of the dispute first. Your presentation should outline your attempt to enforce the provisions of the OHS Act, and how you were discriminated against as a result. You may present witnesses to help illustrate your case. If your witness is unwilling to assist you, the arbitrator can compel the individual to attend and give evidence. If this is the case in your dispute, you should contact the arbitrator, who will issue a summons to the witness in question.
A final component of your presentation should be a compensation request, should the arbitrator find in your favour. The OHS Act empowers the arbitrator to order one or more of the following actions on your behalf:
(If the list above doesn't reflect the kind of compensation you feel you are entitled to, then you should consider consulting a lawyer to determine if another forum for your case would be more appropriate.)
Once your presentation is complete, the arbitrator may ask you questions. The person representing the other side of your dispute will also have an opportunity to do the same.
Next, the other side will present their case. As before, the arbitrator may ask questions, and you will have an opportunity to do so as well.
In closing, the arbitrator may ask you to make a final presentation to sum up your case. Use this opportunity to quickly outline your story, and highlight the proof you have offered.
The arbitration process may take some time. The arbitrator must take into account the rights of both parties, which means allowing both sides time to properly prepare their cases. While both WorkSafeNB and the arbitrator will try to resolve the matter as quickly as possible, there can be significant time between the alleged discriminatory action and the final resolution.
Once a decision has been reached, you will be immediately notified. If you would like a clarification or explanation of the decision, you can request one within seven days of the notification date by contacting WorkSafeNB. If you disagree with the decision, or any order made as a result of it, you have the right to appeal it within 15 days of the notification date. To do so, you must make an application to the Court of Queen's Bench.
If the arbitrator has made a decision in your favour and the opposing party will not comply with the orders given, you may file the decision with the court. It then becomes enforceable as a court order. WorkSafeNB may be able to help with this step.
When an arbitrator is appointed under section 25 of the OHS Act, that arbitrator has all the authority granted under that Act and the Industrial Relations Act. Because of this authority, the arbitrator is legally recognized as having 'quasi-judicial' authority, which simply means they have very similar authority to that of a judge. Likewise, decisions issued by an arbitrator have similar weight to a decision by a judge.
In Canada, the openness and accessibility of the justice system is critical to public confidence. Justice must not only be done, but must be seen to be done. This is achieved by having all courtrooms and hearings open to the public, unless there are serious and overwhelming reasons for the court to be closed. The decisions rendered in those courts and hearings are also available to the public and those decisions are named using the names of the people involved in the case. In this way, the public can trust decisions being made and rely on them for guidance in similar cases.
Arbitrators appointed under the OHS Act are governed by the lawful requirements for openness and by the principles of natural justice and procedural fairness. Arbitrators follow these practices by writing and releasing arbitration decisions with the names of the parties attached.
These practices are not limited to arbitration decisions under the OHS Act, but are followed by provincial and federal courts, including the Supreme Court of Canada, and by other quasi-judicial tribunals in the province such as the Labour and Employment Board and the Human Rights Tribunal. These practices are also consistent with Canadian Judicial Council guidelines, as well as the protocols adopted by the Heads of Federal Administrative Tribunals.
For more information on the arbitration process, please contact WorkSafeNB toll-free at 1 800 222-9775.
Please note: Arbitration decisions are posted only in the language in which they were written.
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