Corrections officer was worried about contamination from searching for contraband in inmate's excrement
A correctional officer’s refusal to search through human excrement was a legitimate refusal to perform unsafe work under the Canada Labour Code, the Canadian Public Service Labour Relations Board has ruled.
Denis LeClair was a correctional officer at the Springhill Institution, a medium security institution in Springhill, N.S. The institution had a “dry cell,” which was a special cell for inmates who are suspected of concealing contraband in a body cavity. The cell contained a “drug loo,” which is a specially designed toilet that diverts feces into a strainer in a holding container. After water is hosed through the strainer, a correctional officer examines it for contraband and, if there is any, bags it and sends it to the institution’s security intelligence officer. Sometimes, fecal matter remains in the strainer.
The dry cell post contains documents and instructions on how to operate the cell and the drug loo, as well as how to put on the personal protective equipment (PPE) for checking the contents. In 2006, an officer’s refusal to perform the work under unsafe conditions led to a requirement for proper PPE and instructions to be at the cell.
On July 11, 2008, LeClair was called in to work overtime at the dry cell post because the staff was shorthanded. Midway through his shift, an inmate was brought to the dry cell. LeClair’s supervisor asked him to examine the drug loo’s container for contraband, but LeClair replied, “I do not search the poop,” and stated it was the manager’s job. The supervisor considered this a refusal to perform assigned work and discussed the situation with the warden and assistant warden.
After the discussion, it was decided to send LeClair home after he completed his report of the incident. However, LeClair refused to leave and said he couldn’t be properly relieved by a correctional manager under normal procedure. After two more conversations, LeClair said he was invoking his right under the Canada Labour Code to refuse work he believed was unsafe. He said he wasn’t properly trained to use the PPE and was worried pressure in the plumbing could force something to “fly out” of the drug loo and contaminate him if he wasn’t wearing the PPE properly.
After two more conversations and warnings that he was at the fourth level of discipline — a fine — under the collective agreement for not following directions to be relieved, LeClair agreed to leave his post, sign his overtime sheet and leave the institution. In addition to the fine, Corrections Canada (CSC) refused to pay his overtime from the time of his work refusal, despite the fact it was some time before he actually left.
The board found LeClair was genuinely concerned about the risks of contamination from the drug loo. Though instructions for operation and PPE were available, LeClair felt his safety was at risk because the instructions didn’t provide information on the consequences of contamination and he lacked training.
Though LeClair didn’t initially indicate he was refusing to work under the code, the board found the supervisor should have understood that was the likely scenario and asked him for more information. It should not have been assumed he was simply disobeying orders, said the board. However, the management team immediately took the disciplinary position and wasn’t open to the possibility of a legal work refusal. As a result, LeClair was threatened with discipline because of his work refusal.
The board ordered CSC to pay LeClair overtime for the time up to the moment he left the institution. See LeClair v. Canada (Treasury Board — Correctional Services), 2010 CarswellNat 1201 (Can. Public Service Lab. Rel. Bd.).