When teachers were included under the Occupational Health and Safety Act (OHSAct) in Ontario (in 1984) by regulation, the issue of whether Department Heads were considered 'supervisors' was unclear. The wording of Section 3.1 of the Regulation was then, and still remains for some people, the cause of confusion and misunderstanding. The Ministry of Labour has been reluctant to formally clarify the issue, and is not in the position to change this poorly written Regulation. However, both informal advice from MOL senior staff and arbitration rulings have made it clear.
What is a 'Supervisor' ?
The OHSAct specifies rights and duties from three roles in any workplace - worker, supervisor and employer. A 'supervisor' has the following legal duties outlined in Section 27:
- ensure that workers comply with the OHSAct & Regs. and use protective equipment required by the employer or legally prescribed;
- inform workers of all known hazards in the work; and
- take every precaution reasonable to protect the workers.
As well, a 'supervisor' can not represent workers as a H&S Rep. or as a worker member on a Joint Health & Safety Committee. A 'supervisor' also has a personal liability of up to $25,000 in fines and/or one year in jail on conviction of non-compliance with the OHSAct.
The OHSAct also requires the employer to appoint only a "competent person" as a 'supervisor' (Section 25(2)(c)). The Act defines 'competent person' as someone who:
- has knowledge, training and experience to organize the work and its performance;
- is familiar with the OHSAct and the Regs. that apply to the work; and
- knows any potential or actual danger to health and safety in the workplace.
Department heads cannot be 'Supervisors'
Section 3.1 of O. Regulation 857 states:
"A principal, vice principal or teacher appointed by the employer of teachers to direct and supervise a school or an organizational unit of a school is a person who has charge of a school or authority over a teacher and exercises managerial functions".
This apparent attempt to impose the industrial model, lead hands or managers on schools produces this false and confusing statement. Notably, Department Heads do not have "authority over a teacher" and do not exercise "managerial functions". Stating them in this Regulation can not make them fact. "Managerial functions" are defined in labour law as the ability to hire/fire, formally evaluate job performance, discipline, or demote/promote. No OSSTF Department Head has these abilities. In fact, only the Principal or Vice-Principal formally evaluate teachers. Only a Principal can discipline a teacher, and only a Principal can recommend a teacher be promoted/demoted or hire/fired. Although Department Heads "direct and supervise...an organizational unit of a school", they do not exercise "managerial functions".
Who is the 'Supervisor' in a school?
Although Principals, technically, do not perform all these "managerial functions" in a school, they are the school's 'supervisor'. Requiring at least one 'supervisor' in a workplace, the policy branch of the MOL consider Principals' responsibilities sufficient that Principals, and Vice-Principals as Acting Principals, are 'supervisors' under the OHSAct.
Now that Principals and Vice-Principals are no longer OSSTF members and are 'agents of the Board', the 'supervisor' issue is clearer. All managerial functions are performed by administration starting at the school level and continuing up to the trustees of the Board of Education.
Since Department Heads are not 'supervisors', they can serve as worker members of Joint Health and Safety Committees, H&S School Reps., and do not have personal liability associated with the legal duties of 'supervisor'.
However, like every worker in a work place, Department Heads have worker duties (and the associated personal liability) outlined in Section 28 of the OHSAct.
Contact the Health and Safety / Workplace Safety and Insurance Act Committee through OSSTF/FEESO Provincial Office, 60 Mobile Drive, Toronto, Ontario at Tel.: 416-751-8300.