[INTRO]
A teacher was being hit almost daily by a special needs student, leaving work with bruises. When does workplace violence become an undue hazard? Welcome to the BC Safety Briefing—I'm Michael Chen. Today we're examining WorkSafeBC Review Division Decisions R0300589 and R0300609, a significant first-level appeal that overturned a prevention officer's original finding. As always, this AI-generated podcast is for educational purposes only, not legal advice. Now, let me walk you through what happened at this BC school district and why Review Officer Tony Fletcher reversed WorkSafeBC's initial decision.
[MAIN CONTENT]
First, let's clarify the review process. When a WorkSafeBC prevention officer makes a decision, parties can appeal to the Review Division—that's the first level of appeal within WorkSafeBC itself. This isn't WCAT, which would be the next level. Review Officers like Tony Fletcher examine whether the original decision was correct based on the Workers Compensation Act and Prevention Manual policies.
This case centers on Section 3.12 of the OHS Regulation—the right to refuse unsafe work. In October 2022, a teacher and several education assistants at a BC school district refused to work with a special needs student who had started at their school in September. The student was hitting staff members daily—open-handed slapping, throwing objects like iPads, metal trash cans, and chairs.
Here's what the evidence showed: The teacher was being hit at least once per day, every day she worked. There were additional near-misses. The employer's own Employee Safety Plans from September and October documented that the student was hitting staff members 'every day for at least half of the time that he was in session.' Staff and students were getting injured regularly.
The WorkSafeBC prevention officer investigated on October 27, 2022. Despite witnessing a 'slapping incident' during her inspection and documenting the daily violence, she concluded there was no undue hazard. Her reasoning? The probability of incidents was high, but the consequences were 'low'—meaning bruising rather than serious injury. She also relied on safety controls that were being implemented but not yet in place.
This is where the Review Division's analysis becomes crucial for safety professionals. Review Officer Fletcher examined what constitutes an 'undue hazard' under the Regulation. The guideline defines it as something unwarranted, inappropriate, excessive, or disproportionate—not just unusual or unexpected. It's about unacceptable, unreasonable, or unnecessary health and safety risks.
Fletcher identified several problems with the original decision. First, the prevention officer made findings based on mitigation measures that hadn't been fully implemented. Not all staff had received the required Low Arousal Technique training—the LAT training. Some wouldn't complete it until January 2023, four months after the student arrived. The student was still sharing space with another student, despite recommendations for separate space.
Here's a critical inconsistency Fletcher noted: The same prevention officer had issued an order under Section 3.10 on October 27, directing the employer to expedite safety training because she found the January timeline created an undue delay. You can't simultaneously find there's no undue hazard while ordering immediate safety training because of unsafe conditions. That's contradictory.
The Review Officer's decision is significant. He ruled that daily violence resulting in injuries—even if they're 'just' bruises—constitutes an undue hazard. Quote: 'While bruising itself in many cases may not be considered a serious injury, it nevertheless is a personal injury by definition.' The test isn't whether injuries are serious—it's whether there's an undue hazard to health and safety.
Fletcher emphasized the pattern: numerous incidents of violence on a daily or weekly basis over several months. This would cause any reasonable person to believe there was an undue hazard. The evidence showed incidents from September 2022 through January 2023, including a January incident where the teacher was struck in the head by a metal trash can.
What this means for your workplace: Frequency matters as much as severity. Daily 'minor' injuries can absolutely constitute an undue hazard. You can't rely on future controls to justify current unsafe conditions. If safety measures aren't fully implemented, workers may legitimately refuse work.
The Review Division varied the prevention officer's decision, ruling the teacher had reasonably refused unsafe work. This reinforces that WorkSafeBC's Review Division will scrutinize prevention decisions carefully, especially when there's documented evidence of ongoing injuries.
For education workers, healthcare professionals, or anyone dealing with potentially violent clients—this decision confirms your right to refuse work when facing daily violence, regardless of your employer's operational mandates. The school district's obligation to educate all students doesn't override worker safety rights under the Act.
Key Takeaways: Document every incident, no matter how minor. Ensure safety controls are actually in place, not just planned. Remember that Section 3.12 protects your right to refuse work you reasonably believe creates an undue hazard. And for employers—you must implement controls before exposing workers to known hazards, not during or after.
[CLOSING]
This Review Division decision sets an important precedent for workplace violence cases in BC. Remember, if you disagree with a WorkSafeBC prevention decision, the Review Division is your first avenue for appeal, followed by WCAT if needed. You can find Review Division decisions on WorkSafeBC's website, along with violence prevention resources. Next week, we'll examine new requirements for psychological safety in BC workplaces. Until then, this is Michael Chen reminding you that no amount of daily workplace violence is acceptable, regardless of the source. Stay safe, British Columbia.