Journal of Commerce by PETER CAULFIELD Aug 2, 2016
Employer-employee differences of opinion are a frequent occurrence. A recent trial in Alberta shows how some disagreements can turn nasty — and costly — when they concern the meaning of a work designation.
In November 2015, the Provincial Court of Alberta in Edmonton heard a suit brought by Western Refractory Services Ltd. against former employee Valerie Fowler.
The suit was based on a claim for damages as a result of alleged misrepresentations of Fowler’s qualifications for the position of certified safety officer (CSO).
The story begins five years ago, when Western Refractory interviewed Fowler for a CSO position. It was company policy to hire only CSOs.
Fowler told the court that at her interview for the position, in addition to answering oral questions, she provided the company with a statement of completion from the British Columbia Institute of Technology’s Construction Safety Coordinator course.
Fowler was hired and went to work in March 2011 on a job site in Fort McMurray where Western Refractory was making repairs to a client’s oil refinery.
But Fowler’s employment with the company ended in June 2011, when she was terminated by Western Refractory.
In a 2012 submission to the Appeals Panel of the Alberta Occupational Health and Safety Council, Fowler contended she was dismissed because she had raised safety concerns related to the requirement for respirator fit testing.
The panel found that Western Refractory was in violation of the Occupational Health and Safety Act when it disciplined Fowler. It ordered the company to pay its former employee the amount she would have earned from the time of her dismissal to the end of July 2011.
But the story didn’t end here.
Western Refractory came back and alleged Fowler owed it more than $16,000 because she was not in fact a certified safety officer, the company said, and had misrepresented her qualifications.
This time Western Refractory was the plaintiff and Fowler was the defendant when the case ended up in Alberta Provincial Court in 2015.
Judge James Skitsko dismissed the company’s claim, however, and in his judgment wrote, in part, “The question in this case was whether Miss Fowler’s reference to the term Certified Safety Officer was a misrepresentation of her necessary abilities and background to the employer.
“I conclude… that so long as the individual involved has… successfully completed the necessary safety courses… that person is qualified to work in Alberta as a Certified Safety Officer.
“I am therefore satisfied that Miss Fowler was such a person and that she did not mislead her employer of her qualifications leading up to her job offer.”
Mike McKenna, executive director of the BC Construction Safety Alliance, says the Alberta case is an important lesson for construction safety officers and the Canadian construction industry.
“There was a misunderstanding of what the certified safety officer designation meant,” McKenna says. “The employer thought it meant one thing, but the employee thought it meant another.”
McKenna says there needs to be common language so that employers understand what skills safety officers have and what they can do.
“Both parties need to begin from the same starting line,” he says.
Until now there has been a multitude of designations and training standards for entry-level safety personnel, which has contributed to problems like the one in Alberta.
But the construction safety organizations that are affiliated with provincial and territorial construction associations are preparing to adopt a common designation and training curriculum for safety employees in 2016.
The shift to a common regimen has been in the works for several years.
After the changes are brought in, all the safety associations will offer a National Construction Safety Officer (NCSO) designation.
The designation will be transferable to all provinces and territories through the sister safety associations.
To become an NCSO, aspiring safety personnel will have to write a standardized test.
“A sub-committee of the CFCSA (Canadian Federation of Construction Safety Associations) is drawing up a bank of questions that provincial and territorial jurisdictions can draw from to set their exams,” says Steve Wallace, safety director of the Heavy Construction Safety Association of Saskatchewan.
“It is expected to complete the list by August this year. In addition, each jurisdiction can have a supplemental exam on the particularities of its safety regulations.”
Jackie Manuel, CEO of the Newfoundland and Labrador Construction Safety Association, says national standards will make it easier for construction safety personnel to have their credentials recognized regardless of where they’re working.
“I also think a strong national standard gives credibility to the designation,” she says.
Tammy Hawkins, chief operations officer with the Alberta Construction Safety Association, says the changes will enable the “seamless transition” of safety officers across jurisdictions.
“It will make it easier for safety personnel to move to other jurisdictions and increased labour mobility is good for the Canadian construction industry,” Hawkins adds.