The information below will help you understand how we handle a prohibited action complaint from a worker and your role, as the employer or union, in the process.

1. Receiving a prohibited action complaint

If a worker thinks they have experienced prohibited action, they must submit a complaint to us using the designated forms.

There are strict timelines to file a complaint depending on the nature of the complaint. The timelines are:

• Prohibited action complaints must be submitted to us within one year of the prohibited action.
• Failure to pay wages complaints must be submitted to us within 60 days after the wages became payable.

2. Referral to Prevention Services

The Prohibited Action Complaints team does not fix occupational health and safety issues. We only address the negative impact of actions taken by the employer or union related to a worker’s employment or union membership.

When we receive a complaint, we provide a copy of it to Prevention Services. Prevention Services looks into the occupational health and safety concerns identified in the complaint and may issue inspection reports to correct the occupational health and safety issue. Prevention Services does not address the prohibited action complaint itself.

3. Initial screening and request for evidence

Our team will conduct an initial screening of the complaint to determine if it is filed within the required time limit, and to ensure the employer’s workplace is within WorkSafeBC’s jurisdiction. We only have jurisdiction to receive complaints arising out of provincially regulated workplaces. If the worker’s workplace is not in our jurisdiction, for example inter-provincial transportation or a mine, workers should direct their complaints to the Government of Canada’s Labour Program.

If the complaint passes our initial screening, we ask the worker to provide supporting evidence and written argument as to how the evidence establishes the elements of a prohibited action complaint. Examples of supporting evidence may include emails to the employer raising a health and safety concern and letters of discipline or termination the worker received as a result.

4. Preliminary review of complaint

Our team then conducts a preliminary review of the complaint and evidence. We look at whether the complaint raises any other jurisdictional issues. We also ensure the complaint contains the basic elements that may be considered a prohibited action. This does not mean that the complaint will be successful — it means that there is enough evidence to require submissions from the employer.

If the worker has filed a grievance with their union relating to the same issue, they cannot pursue a prohibited action complaint with us at the same time. To preserve their right to a prohibited action complaint, they can submit a complaint, but they must then elect whether to pursue a grievance with their union or a prohibited action complaint with us. They cannot do both.

We may suspend the complaint until we can determine the status of a potential union grievance. Suspending a file does not mean that the complaint is closed. It allows us time to investigate a potential grievance and determine the next steps.

5. Mediation

If the complaint passes the preliminary review, you will be notified of the complaint when we invite you and the worker to participate in voluntary and free mediation. The only issue that can be mediated is the prohibited action complaint. Mediation often helps parties resolve their dispute quickly and in a neutral setting with more control over the outcome.

We will provide you and the worker with full details of the complaint and any subsequent material collected during the initial inquiry.

To learn more, see Mediating Prohibited Action Complaints — Frequently Asked Questions.

Both you and the worker are free to resolve a complaint at any time on your own. Workers are also free to withdraw a complaint at any time through their online services account or by submitting a Prohibited Action Complaint Withdrawal (Form 11B41).

6. Written hearing

If a mediated settlement can’t be reached, or if you or the worker decide not to mediate, the file will proceed to the written hearing stage.

The first stage in the written hearing is to invite you to provide us with your submissions (argument) and evidence in response to the worker’s complaint. Keep in mind, under the Workers Compensation Act, the burden of proof is on the employer or union to show that there has been no prohibited action.

We will disclose your submissions and evidence to the worker for their reply. We may provide the parties with additional opportunities to provide submissions if there are new facts that require a response from the other party.

7. Decision

Once submissions have concluded, one of our lawyers will review the submissions and evidence provided by the parties and prepare a written decision as to whether a prohibited action occurred. The lawyer may accept or dismiss the complaint.

If we dismiss the complaint, no orders will be issued and the file will be closed. If we accept the complaint, the file will proceed to a written hearing on the remedy.

8. Remedy hearing

If we find that prohibited action took place, based on a full review of all the relevant information, we will typically require further submissions from you and the worker on what remedy to award the worker. The lawyer will make a decision on the remedy award, in writing, and issue one or more formal orders to remedy the situation.

The primary objective of the remedy award is to put the worker in the same position as the worker would have been in had the prohibited action not occurred. See a summary of the remedies available to workers.

If you comply with the order(s), the complaint is resolved.

If you don’t comply with the order(s), the complaint is referred to Prevention Services for enforcement.

Appealing the decision

If you disagree with the decision, both you and the worker may appeal the decision directly to the Workers’ Compensation Appeal Tribunal (WCAT) as long as the appeal is filed within 90 days of the decision.

You may ask WCAT for a stay of proceedings until the appeal has been completed. Unless a stay has been granted, you must comply with the remedy order within the timeframe specified in the decision, even if the application for a stay or the appeal is outstanding.