You make the call
This instalment of You Make the Call features two airport screening officers who exercised work refusals over concerns about radiation coming from X-ray scanners.
Alicia Doyle and Tracey Cleveland-Wood were screening officers at Halifax Airport employed by Securitas Transport Aviation Security Limited, a security services company based in Toronto. Their job duties involved screening passengers and their baggage before they boarded departing aircraft.
Doyle and Cleveland-Wood both worked with baggage screening devices as part of their jobs. Luggage was placed on a conveyor belt, which moved the luggage through lead curtains into the device, where it was X-rayed. The conveyor belt then moved the luggage out through a second set of lead curtains on the other side of the machine. There were two X-ray generators inside the machine — one at the bottom pointing up through the baggage and one at the side pointing straight through.
On Aug. 31, 2017, both officers said they were concerned about the levels of radiation emitted by the screening device when luggage moved in and out of the curtains while the X-ray was on. They said they sometimes stood close to the tunnel when the curtains were open, which could expose them to radiation.
The two screening officers asked Nav Canada — a privately run, not-for-profit corporation that owns and operates Canada’s civil air navigation system — to test the levels of radiation when the curtains were up. Nav Canada didn’t agree to conduct the test, so Doyle and Cleveland-Wood filed a formal work refusal with the Labour Program of Employment and Social Development Canada (ESDC). Their work refusals stated that the lead curtains had become frayed, raising questions about their integrity, and some pieces of luggage were too close together and held the curtains open while another bag was being X-rayed inside the machine.
Securitas’ occupational health and safety committee investigated the refusals and found there was no danger to the two workers. However, Doyle and Cleveland-Wood continued their refusals, so ESDC sent a delegate to conduct her own investigation.
The ESDC delegate found that a danger as defined by the Canada Labour Code — “any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered” — justified the work refusals under the code. The danger stemmed from the fact that Securitas didn’t consistently implement a 12-inch distance between bins going through the screening device recommended by Canadian Air Transport Authority (CATSA) procedures for accurate scanning; radiation testing of the machines hadn’t replicated the conditions the employees complained of; and the safety code under Canada Labour Code regulations states that “no person shall do anything to keep the curtains open while an x-ray is taking place” and people should stand at least 50 centimetres away from the open sides of the machine.
The delegate issued a directive to Securitas to correct the condition constituting the danger within one week and to appoint “a qualified person to investigate possible radiation exposure” to employees using the screening machine. However, she also informed Doyle and Cleveland-Wood that they could not continue to refuse work because the threat wasn’t imminent and was only a “potential” threat that Securitas would correct within a week. In addition, the evidence from testing and the design of the machine was that very little radiation scattered outside the machine.
Securitas appealed the decision, arguing there was no real danger to correct.
You Make the Call
Was there a danger to the employees? OR Should the company have taken steps to make the X-ray machines safer?
IF YOU SAID there was no danger, you’re right. The tribunal noted that the delegate’s directive to Securitas was based on a potential threat to the health of employees in the future. However, there was no “factual foundation” that would lead to a reasonable expectation of a threat under normal circumstances, said the tribunal.
“A danger does not include situations which are hypothetical or speculative, or mere apprehension that a given situation may constitute a threat to the employee,” said the tribunal. “It must be founded on material facts that establish a reasonable possibility that an employee’s health will be threatened, either in the immediate (imminent) or the longer term (serious).”
The tribunal noted that the ESDC delegate’s finding that there was a danger was based largely on the safety code and procedures relating to the distance between bags so they didn’t raise the curtains during X-rays and the distance people should stand from the X-ray machine and not any observation of dangerous radiation levels. There was no evidence of “abnormal levels of radiation or malfunctioning of the scanners,” which didn’t establish a reasonable expectation of a threat, the tribunal said, adding that the CATSA procedure for 12 inches between bags was for accurate scanning, not concerns over the amounts of radiation escaping the curtains.
The tribunal noted that it was unusual for an investigation to result in a finding of danger but that employees refusing work could no longer do so. This further lent credence to Securitas’ argument that there was no real, imminent danger for it to correct.
For more information see:
• Securitas Transport Aviation Security Ltd. v. Doyle, 2018 TSSTC 10 (Can. OHS Trib.).