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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 1894 13
1/22/2014
S. Darvish

  • Board Directives and Guidelines (Workwell)
  • Penalties (Workwell)
  • Employer (temporary help agency)

The employer was a personnel agency that provided temporary personnel to long-term care facilities. The employer appealed a decision of the Appeals Resolution Officer confirming that the employer was subject to a premium surcharge due to its score on a Workwell audit.
On the first audit in January 2009, the employer scored 190 out of 800, or 23.8%. On the second audit in December 2009, the employer scored 410, or 51.2%. This was still well below the passing score of 75%.
The employer submitted that many of the items on the Workwell survey were not applicable to it because it is not the owner of the buildings in which its personnel work or the equipment which the personnel use. Therefore, the employer argued, it should be excluded from complying with certain provisions of the Occupational Health and Safety Act (OHSA) and various items should be excluded from the Workwell audit.
The Vice-Chair agreed, in general, that not all provisions of the Workwell audit apply to all employers. The Vice-Chair noted that the Workwell evaluator did customize the survey to meet the requirements of this employer. However, the Vice-Chair did not accept the employer's blanket argument that virtually the entire survey did not apply to it simply because it was not the owner of the facilities in which the workers were working.
The employer met the definition of employer within the OHSA. Therefore, it must comply with the obligation set out in the legislation, in particular ss. 25 and 26. Many of those specific requirements apply to this employer. Further, copies of the contracts between the employer and the various long-term care facilities were not provided. Therefore, there was a lack of evidence about the respective responsibilities of the employer and the long-term care facilities regarding the various health and safety requirements in the Workwell audit.
The appeal was dismissed.