There are few things more unsettling to employers than a surprise visit by a WorkSafeBC investigator, whatever the motivation for the inspection may be. While many managers may want to respond by telling the investigators to “get lost”, a more sensible approach starts with understanding everyone’s rights, obligations, and expectations during investigations of this nature.
Section 179 of the Act provides the authority for WorkSafeBC officers to conduct inspections. As confirmed in the Guidelines, an inspection is a visit to a workplace in order to:
- Determine compliance with the Act, Occupational Health and Safety Regulations, or an order;
- Observe work practices and conditions at the workplace; and
- Investigate incidents and complaints around occupational health and safety.
The authority for Officers in conducting these investigations is very broad as Officers may conduct an inspection of any workplace, at any time or place where work is being done. In fact, the broadest language under s. 179 is found in subsection (d), which provides authority for Officers to enter any workplace to ensure compliance with Occupational Health and Safety requirements:
179 (1) An officer of the Board may enter a place, including a vehicle, vessel or mobile equipment, and conduct an inspection for the purpose of
d) determining whether there is compliance with this Part (Occupational Health and Safety), the regulations or an order.
Inspections are typically conducted without notice, as the purpose of most inspections is to review conditions at the workplace during the normal course of business. Naturally, WorkSafeBC doesn’t want to give employers the opportunity to correct deficiencies in advance of a visit.
When commencing an inspection, Officers are required to inform the employer as to the nature of the inspection; that is safety or hygiene, occupational environment (including bullying and harassment), medical or other reasons. Although an inspection is made for a specific purpose (for example, the occupational environment), any other violations of occupational health and safety norms observed by the Officers will also be addressed.
Both the employer and workers are entitled to have a representative (including legal counsel) accompany Officers during the investigation. If the employee or the employer is subject to questioning, they are also entitled to have a representative present.
While on site, Officers also have broad powers in what they can or cannot do. Specifically, Officers are authorized under the Act to:
- Inspect records that may be relevant and, on giving a receipt for a record, temporarily remove records to make copies or extracts;
- Require a person to produce within a reasonable time records in the person’s possession or control that may be relevant;
- Question persons with respect to matters that may be relevant, require persons to attend to answer questions to be answered under oath or affirmation;
- Take photographs or recordings of the workplace and activities taking place.
Officers also have limited authority to seize evidence without a warrant if there is a reason to believe that a regulation or order has been violated and that the item being seized provides evidence of the contravention.
Finally, when an inspection is being conducted in the workplace section 186 of the Act requires:
186 (1) A person must provide all reasonable means in that person’s power to facilitate an inspection under this Part.
(2) A person must not
(a) hinder, obstruct, molest or interfere with, or attempt to hinder, obstruct, molest or interfere with, an officer in the exercise of a power or the performance of a function or duty under this Part or the regulations,
(b) knowingly provide an officer with false information, or neglect or refuse to provide information required by an officer in the exercise of the officer’s powers or performance of the officer’s functions or duties under this Part or the regulations […]
This suggests that employers subjected to an investigation have a duty to not only allow the inspection but also to assist where required. Employers must allow WorkSafeBC Officers access to the workplace, must be forthcoming in providing requested material and must allow its staff to undergo questioning.
However, employers should also expect the following from WorkSafeBC Officers:
- That they will conduct themselves in a businesslike, professional manner. It is not acceptable for the Officers or the employer/employees to conduct themselves with hostility, arrogance or intimidation;
- The Officer should identify themselves, produce credentials and advise of the reasons for their inspection;
- Both the employer and workers are entitled to have a representative accompany the Officers. For managers and business owners, it is in your interests to have a knowledgeable management person accompany the Officer during the investigation. The worker’s representative must be chosen by the Union, if there is one, or by the OH&S committee;
- If staff are being interviewed, they are not expected to speculate on answers. Staff should inform the Officers if they do not know the answer to questions or if they do not understand what is being asked of them.
What About Privacy Rights?
Given that WorkSafeBC Officers have broad investigation rights, these may raise legitimate concerns from employees and employers alike about compliance with privacy requirements under the Personal Information Protection Act (“PIPA”).
Unfortunately, PIPA provides for broad exceptions within the legislation to allow for the disclosure of personal information without the individual’s consent during the course of a public body’s investigation. Accordingly, employers required under the Workers’ Compensation Act to provide requested information relevant to the investigation, and this is authorized under PIPA without the consent of the worker. However, it would not be improper to advise workers affected by the investigation the extent and nature of their personal information that was disclosed to WorkSafeBC.
Consequences for refusing compliance
As I summarized in the previous section, employers have a legal requirement under the Act to allow an inspection to be conducted, to participate in the investigation and to provide all reasonable means to facilitate the investigation. If an employer refuses to comply with requests issued by Officers, WorkSafeBC has the authority to issue orders, enforceable by a Supreme Court injunction as well as the authority to issue administrative penalties up to $600,000.00. Officers and Directors of the Employer that acquiesces in the commission of an offense may be independently liable upon conviction of fines in similar amounts and imprisonment of up to 6 months.
At Kent Employment Law, we promote sustainable employment relationships. We believe that these relationships are mutually beneficial to employers and employees alike, and are founded on a relationship of trust and respect. If you have questions concerning WorkSafeBC inspections such as those discussed in this article, please contact one of our offices.