Refusal to attend disciplinary meeting not a valid work refusal: OLRB

'Maybe his concern should be addressed in another forum or via another legal vehicle'

Refusal to attend disciplinary meeting not a valid work refusal: OLRB

The Ontario Labour Relations Board has dismissed a worker’s claim that a five-day suspension was a reprisal for him exercising his right to refuse unsafe work under the province’s Occupational Health and Safety Act (OHSA).

It’s a situation where there was no evidence that the worker actually exercised that right and, while there was a concern for the worker and the employer, it wasn’t safety-related, says Paulette Haynes, an employment lawyer at Haynes Law Firm in Toronto.

“There was a workplace issue – the [worker] and the employer did not seem to agree on the scope of the appropriate accommodation,” says Haynes. “Sometimes an employee will use the safety reprisal complaint process to deal with workplace issues that are unrelated to safety, but there might really be something else.”

“If accommodation was really was at the crux of it, it may not be a protected safety right under the OHSA – maybe his concern should be addressed in another forum or via another legal vehicle.”

Potential misconduct discovered

The worker was a correctional officer at Corrections Canada (CSC) at the Elgin Middlesex Detention Centre (EMDC) in London, Ont. Hired in 2015, he was off work from May 2019 to March 2020 due to a disability related to post-traumatic stress disorder (PTSD).

The worker worked for three weeks and went off work again. He claimed there was an “unsafe work incident” and applied for workers’ compensation benefits.

While the worker was away, CSC reviewed multiple incident reports that revealed potentially inappropriate conduct. It held off investigating until the worker returned.

Read more: The Canadian Occupational Health and Safety Tribunal confirmed that work refusals are for emergency situations only while other safety concerns should be addressed by a health and safety committee.

The worker returned to work on Nov. 5 and CSC suspended him with pay pending an investigation. CSC scheduled an allegation meeting on March 2, 2021, with a letter outlining the allegations of the worker’s misconduct – including not being in proper uniform, grooming, disrespectful attitude to a supervisor, booking off sick with little notice while saying he couldn’t care less, not alerting staff of delivering Ramadan meals to inmates after dark, poor meal preparation, inappropriate comments on the radio, and telling a sergeant to “Get out of here.”

At the meeting, management believed that the worker didn’t accept responsibility for his actions. He also said that he had been diagnosed with a mental health condition and alcoholism. The worker was subsequently referred to the employee and family assistance program (EFAP).

CSC decided to suspend the worker for eight days. However, on March 17, the worker provided a medical note recommending that he remain off work. CSC placed the worker on short-term disability and postponed the suspension and a “decision meeting.”

CSC also granted the worker’s request for a transfer to the Sarnia, Ont., jail in April, which he had requested as accommodation to get away from the problems at the EMDC. In June, CSC decided to reduce the worker’s suspension to five days. It planned to inform him of the suspension at a decision meeting scheduled for June 24.

Worker refused to attend meeting

The worker responded that he would not attend the meeting and he was refusing unsafe work, as he needed to get better from his PTSD and stress before attending such a meeting. He met in person with management to discuss his anxiety about the meeting. He was told that no one from the EDMC would be at the meeting, so the worker asked to have the meeting immediately.

CSC suggested that the worker first speak to his union representative. It felt that at this point that the worker was no longer raising a concern about his safety.

Later that day, the worker requested that the meeting be moved up to June 18 to accommodate his union representative. CSC agreed.

However, the day before the rescheduled meeting, the worker’s doctor sent a note indicating that the worker was feeling anxious. On the morning of the meeting, he emailed to say that he would not be attending as it was unsafe for him and he was invoking his rights under the OHSA. He asked CSC to contact the Ministry of Labour to start an investigation.

CSC contacted the ministry, but the ministry didn’t accept the work refusal because the worker wasn’t at work.

The worker didn’t attend the decision meeting, so CSC emailed a disciplinary letter advising him of the five-day suspension.

Proceed with caution

Even with the worker’s hesitancy, CSC recognized that the worker had some issues around a disability and accommodation, and it proceeded cautiously, says Haynes.

“I think the employer was careful in terms of acknowledging [the situation] once they knew that there was a disability,” she says. “They didn't bulldoze through to their meeting and the suspension, and you get the sense that they really wanted to meet with the [worker] in person to have the conversation.”

“Even at the point when the employer got the note from the doctor, they put [the worker] on a short-term disability leave and they held off on suspension, they held off on the decision meeting until such time as [the worker] returned to work,” she says.

“And when they decided to have the decision meeting on June 24, the employee was already back to work – you get the sense that the employer was trying to work with the employee.”

Suspension a reprisal: worker

The worker filed a complaint alleging that he was suspended for a health and safety issue, which was a reprisal for his refusal of unsafe work.

The Ontario Labour Relations Board found that the worker believed that CSC wasn’t mindful of his health and his need for accommodation, and that CSC’s decision to hold the meeting on June 18, 2021, was a reprisal. However, the only instance of his seeking enforcement of the OHSA was his refusal to attend that meeting on the grounds that it wouldn’t have been safe for him – but the meeting was scheduled before his refusal and couldn’t be a reprisal.

The board found that there was no evidence of any penalty imposed on the worker for his failure to attend the meeting. The disciplinary letter sent to the worker after the meeting was related to incidents at the EMDC and for which discipline had already been decided before the worker’s refusal to attend.

Read more: An Ontario worker’s work refusal after an altercation with a co-worker was overzealous as there was no danger to him in his working conditions.

Although the worker claimed that the five-day suspension was for a health and safety issue, he had no evidence supporting the claim. The evidence supported CSC’s explanation that the suspension was for the allegations addressed at the March 2021 allegation meeting, the board said.

The board determined that the suspension was disciplinary and stemming from the investigation into events at the EMDC, well in advance of the worker’s refusal to attend the decision meeting. The worker was also informed in advance that discipline would likely result from the meeting, added the board in dismissing the complaint.

Good reminder for employers

The decision is a good reminder that in circumstances where reprisal for a worker’s exercise of safety rights is alleged, the onus is on the employer to prove that that there was none, says Haynes.

“It is incumbent on the employer to prove that any discipline that is meted out on the employee is unrelated to any right that would have been invoked under the act.”

But while the employer was successful in defending the allegations of reprisal, there were other issues related to accommodation that may have to be addressed, she says.

 “The employee’s failure to address some of these things in an appropriate forum leaves them more vulnerable to having those cases dismissed,” says Haynes. “But it also may give the employer an opportunity to resolve those disputes internally.”

See Semenuk v. Sarnia Jail, 2022 CarswellOnt 9432.

 

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