Written by Lai-King Hum, Employment Lawyer, Human Rights expert, and Deputy Judge with the Toronto Small Claims Court.
In the dynamic landscape of the mining sector, maintaining a safe and compliant workplace is paramount. With the authority to scrutinize compliance with Ontario’s Occupational Health and Safety Act (OHSA) and the special rules regulating the mining industry, the MOL plays a pivotal role in upholding safety standards within the mining industry. The prospect of a Ministry of Labour (MOL) investigation can be a daunting challenge for mining employers. This article explores key strategies and best practices for navigating workplace health and safety investigations specific to the unique demands of the mining sector in Ontario.
When will MOL investigations occur?
MOL investigations may happen at any time. Within the mining sector they can be triggered by employee complaints or workplace accidents. There is also a routine of random or targeted inspections.
In one case of an employee complaint triggering an investigation, the MOL investigated a complaint of an unsafe work environment. It was related to the employer’s failure to take all reasonable care to ensure equipment, materials, and protective devices were safe and in working order. Additionally, incidents resulting in critical injuries or fatalitiesautomatically trigger MOL investigations.
Random and targeted inspections, executed without a warrant, are designed to verify compliance with safety regulations tailored to the unique demands of the mining industry. The MOL maintains a dynamic list of targeted industries due to various reasons. For instance, if a particular hazard is identified in a specific industry, the MOL may issue a ‘Hazard Alert’ and add that to the list. As one of the specific industries exhibiting a track record of non-compliance with OHSA, mining often appears on the list.
Obligation to investigate violence and harassment
Regarding workplace violence and harassment complaints there are a few slight differences – mining employers bear a responsibility to initiate investigations promptly to avoid MOL investigations.
Depending on each case’s specific circumstances, a simple harassment complaint may only necessitate an internal investigation conducted by the HR department. On the other hand, allegations of serious issues such as sexual harassment, racial discrimination, or bullying, especially when there’s a power imbalance between managers and employees, may require an external investigation carried out by an independent third party.
It is crucial to conduct a thorough and timely investigation to avoid MOL investigations on OHSA compliance related to workplace violence and harassment. In certain circumstances, such as sexual harassment, failing to do so can be considered discrimination and result in general damages under the Ontario Human Rights Code.
Consequences of MOL investigations
Failing to respond appropriately to MOL investigations can lead to severe consequences for mining employers, including compliance orders, fines, and even imprisonment. Non-compliance with compliance orders may result in criminal charges. Criminal charges often carry hefty fines, with recent amendments in 2022 increasing the maximum fine against a convicted director or officer to $1.5 million, aligning it with the maximum fine for a corporation. Criminal charges may also lead to imprisonment of up to 12 months.
Under the OHSA, inspectors also have the authority to issue a ’Stop Work’ Order, halting all operations until safety concerns are addressed.
Immediate action and legal counsel
In the event of a MOL investigation notice in the mining sector, swift and cooperative action is crucial. Engaging legal counsel with expertise in the early stages is advisable due to the complexity of MOL investigations. A lawyer can streamline processes, handle information requests, negotiate with MOL officials, and represent mining employers in legal proceedings. Taking these steps not only saves time and money but also demonstrates a commitment to compliance, potentially leading to a more favourable outcome.
Advance planning in the mining industry
Bear in mind that the mining industry frequently falls into the MOL category of ‘targeted inspections’ and ‘compliance initiatives.’ As such, advance planning is essential for mining employers. Mining employers should proactively understand their legal obligations under OHSA and other related legislation. Hire a lawyer with expertise to ensure that your employment contracts and policies comply with laws and regulations, planning ahead of MOL investigations and allowing you to focus on your business.
A strategic approach
Navigating workplace health and safety investigations in the mining sector requires a strategic and proactive approach. Employers must be vigilant, understand the triggers for investigations, and take immediate and informed action when necessary. Engaging legal counsel early on not only aids in effective responses but also contributes to a culture of compliance and trust with regulatory authorities. Ultimately, prevention through legal expertise ensures a smoother operation in the mining industry without the disruptions of MOL investigations.