Labour board rules employer cannot hide behind misconduct allegations if terminating an employee for a work refusal.
Occupational health and safety is a responsibility which must be shared between employers and workers, as they are the parties in the best position to identify problems and to develop solutions. In Ontario, the Occupational Health and Safety Act gives workers the right to refuse work that the employee believes to be unsafe. Where such a work refusal occurs, the act sets out a specific procedure that must be followed. An employer ignores this procedure to its detriment, as one company discovered in a recent Ontario Labour Relations Board decision.
In this dispute, the employer, a manufacturer and designer of high-speed printers, hired a senior mechanical engineer to assist in the development of a new printer. Three weeks later, the newly hired engineer was terminated, allegedly for misconduct. In his complaint to the board, the dismissed employee asserted that the real reason for his dismissal was his refusal on two occasions to conduct what he believed were unsafe experiments on a solvent-based cleaning system for the new printer. His belief was based on significant allergic reactions he suffered during previous experiences working with similar chemicals.
Shortly after the work refusals, the employee’s manager approached the human resources department to ask if the engineer’s employment could be terminated, based on his hostile attitude to other employees. The manager of human resources informed him that it was too early to terminate and that he should instead formally advise the employee to start dealing with his co-workers better. However, the manager did not do this nor did he advise anyone else of the work refusals. After receiving more employee complaints about the engineer, the manager again requested permission to terminate him, which he received after indicating that he had formally spoken to the employee in question about his behaviour.
The board found that the only issue in this dispute was whether the company’s decision to terminate the applicant’s employment was due all or in part to his work refusal. The board found it significant that the company discharged a senior professional engineer after only three weeks of employment, especially since the employee’s direct manager actually sought to take this action one and a half weeks earlier. The board was of the opinion that something drastic must have happened to trigger this reaction so soon in the relationship.
The employer argued that the “something drastic” was the number of employee complaints it received about the attitude of the terminated employee, but this argument was rejected by the board. While accepting the overwhelming evidence that indicated that the employee’s manner of communication with other employees was “arrogant and dismissive,” the board could not accept that he was so difficult that such problems would be the only reason for the employer’s decision to terminate his employment so quickly.
The timing of events was key in the board’s decision. The board was particularly struck by the fact that the man’s manager asked to terminate him immediately after his first work refusal, that the employee’s work refusal was cited as an example of his poor attitude, and that the manager did not advise anyone, other than the manager of human resources, about the work refusal. This was all compounded by the fact that the company did not assign the engineer any other work following his first — and second — refusal and did not invoke its own internal procedure for accommodating employees with chemical reactions. Accordingly, the board ruled that the employer breached the act when it discharged the employee.
So what should have been done to avoid this situation? First, employers need to encourage workers to openly discuss all their concerns with their supervisors in an effort to have the workplace parties resolve the issue themselves at an early stage. If an agreement cannot be reached, the matter should be referred to higher levels of management or to the joint health and safety committee for its input and recommendations.
Second, where a formal work refusal does occur, the act requires that the worker’s supervisor must immediately investigate the situation in the presence of the worker and a member of the joint health and safety committee who represents workers. A written record of the occurrence and the results of the investigation must be made and kept for the employer’s records. If this resolves the situation, the worker will return to work.
However, the worker may continue to refuse to work if he has reasonable grounds to believe the work continues to be unsafe. Upon a second refusal, the employer is required to notify an inspector with the labour ministry, who will come to the workplace to investigate the refusal in the presence of all the parties and prepare a written decision on whether the work is likely to endanger anyone. A worker cannot be disciplined or terminated for a work refusal except where it was made in bad faith or if the worker continued to refuse after the labour ministry inspector found the work was not likely to endanger the worker.
For more information: Margulis v. Delphax Systems, Ontario Labour Relations Board, Case No. 0069-99-OH, July 31, 2000. To obtain a copy of the Ministry of Labour’s Guide to the Occupational Health and Safety Act go to www.gov.on.ca/LAB/ohs/g_ohse.htm.
Jacqueline Connor is the assistant editor of CLV Reports, a labour relations newsletter. For a subscription call 1-800-387-5164.
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