Port worker refused unsafe work after being ordered to wear helmet

Wearing a hard hat on the job usually contributes to safety. But a stevedore working at a port in Saint John, N.B., invoked his right to refuse unsafe work when his employer ordered him to put one on.

On Feb. 1, 2005, Brian Duplessis was directed to put on a safety helmet. He refused, charging that wearing a hard hat constituted a danger. He was placing cutting boards to rotate paper rolls under the wing of a ship at the time. Duplessis was concerned there was a risk of being jammed between paper rolls or being crushed by a moving roll when being distracted by a hard hat that could fall off his head or create a visual obstruction preventing him from seeing a paper roll move unexpectedly. The danger of being struck in the head was almost non-existent, he argued.

The next day, a health and safety officer issued a report on the work refusal, stating that a danger did not exist for Duplessis if he wore a hard hat. That decision was appealed by Duplessis.

The appeals officer cited a 2005 report which described a 1997 policy establishing that all employees must wear a hard hat in the hold of the vessel. He also noted a risk assessment carried out by the joint workplace health and safety committee which stated there is a risk of head injuries but a greater risk of wearing the hard hat due to visibility. But the appeals officer said that where the risk of head injury has been identified, the employer must comply with the Canada Labour Code. He concluded that by enforcing the requirement to wear a hard hat, the employer was complying with the Marine Occupational Safety and Health (MOSH) Regulations.

The appeals officer noted that the MOSH regulations also specify that wearing a hard hat shall not create a hazard. The appeals officer was convinced that the movement of paper rolls in the hold was a serious hazard to employees, but a normal condition of work.

That ruling was appealed to the Federal Court. The court didn’t agree with the appeals officer, ruled the decision was patently unreasonable and sent the matter back for redetermination by a different appeals officer.

“At no time does the appeals officer address the question of whether a hard hat was a ‘danger’ to (Duplessis) while performing the particular work of placing the cutting boards to position rolls of paper in the hold of the vessel,” the court said. “This was the sole basis for (his) refusal to work.”

For more information see:

Duplessis v. Canada (Attorney General), 2006 CarswellNat 1946 (F.C.).

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