Right to refuse dangerous work expands

Court decision addresses ‘possibility’ of danger in federal labour code

The rules around assessing dangerous work may have gotten murkier for employers in federally regulated industries, where employees can now refuse work on the basis of potential — as opposed to existent — danger.

In a recent decision favouring prison guards who want to carry handcuffs, a Federal Court judge applied a new definition of “danger” introduced in a 2000 amendment of the Canada Labour Code.

In effect, “potential risks are now on the table,” said David Law, an Ottawa-based lawyer specializing in health and safety issues, with the firm Emond Harden.

Before 2000, danger was defined as “any hazard or condition that could reasonably be expected to cause injury or illness to a person exposed...” It’s now defined as “any existing or potential hazard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person exposed to it...”

In Verville v. Canada (Correctional Services), Judge Johanne Gauthier ruled that workers can refuse work if there’s a reasonable possibility that danger will occur.

“The injury or illness may not happen immediately upon exposure, rather it needs to happen before the condition or activity is altered,” she wrote.

“Also, I do not believe that the definition requires that it could reasonably be expected that every time the condition or activity occurs, it will cause injury,” she added.

Qussai Samak, the union health and safety officer who represented the Kent Penitentiary prison guards in the case (see sidebar below), said despite the wording change in 2000, the Canada Appeals Office has been interpreting dangerous work more along the old, narrower sense. The Canada Appeals Office is the body that hears appeals involving determination of dangerous work by health and safety officers.

At Toronto Workers’ Health and Safety Legal Clinic, labour lawyer and director Daniel Ublansky agreed that the expanded definition had not been put in practice until now. “A lot of time even though the law has changed, it takes a while for the front-line people to get comfortable with it and start applying it,” said Ublansky, adding that the amendment has brought the federal labour code more in line with how provincial health and safety laws treat the issue.

“From a lay point of view, it didn’t seem that difficult to grasp that prison guards are subject to assault by inmates, and if the application of handcuffs is of benefit to the guards, I would see that as a serious issue.”

Law said the appeals office has been assessing danger in terms of the likelihood of it occurring. (The appeals office lay out a test for this likelihood in a case involving an Air Canada flight crew member who refused to work on a Israel-bound flight on the third day following the 2001 World Trade Centre attack. The refusal was rejected.) This prison guard decision, Law added, will likely mean the legal test for potential danger will have to be revised.

In lowering the standard for assessing potential danger, Judge Gauthier has also made it more difficult for employers to decide whether workers can refuse work, said Law. “‘Reasonable possibility’ is a little harder to define than ‘likelihood’ and a little less practical as well,” he said, adding that both standards of danger are significantly more complex than the imminent, “a-saw-will-go-through-my-foot” notion of danger.

Law’s advice to employers is, whenever employees feel so concerned about their health risks that they would resort to such a drastic measure as refusing to work, “the first thing you do is shut up and listen.” To dismiss out of hand would be disrespectful about an issue that, in the employee’s perception, could have serious, harmful consequences.

“People are often very poor judges of risk, but if we don’t listen to them, what can they conclude except that we don’t care. Even if they’re wrong — particularly if they’re wrong — they need sensitive handling of the issue, to be sure that we will go through an analysis of the perceived risk and manage it.”

The last thing an employer should do is retaliate, which is illegal.

Hence, even before a refusal to work takes place, said Law, employers should sit down with the joint health and safety committee, conduct a thorough review of risks and flesh out a process by which the employer will assess the potential for danger.

Among those awaiting the application of this expanded definition are park wardens for Parks Canada. In 2000, shortly after Parks Canada issued a directive that wardens would not be routinely carrying firearms, a park warden from Banff National Park exercised his right to refuse work.

On top of natural resource management and public safety, park wardens are also responsible for law enforcement in national parks, said Jeff Bennie, national health and safety officer for Public Service Alliance of Canada (PSAC). It’s through this latter role that wardens are exposed to potential danger and require the use of sidearms.

“If we ask park wardens to assume the role of police officers, we have to be prepared to equip them as a police officer,” said Bennie. He added that at Banff National Park, in particular, the main highway weaving through the park also happens to be the main conduit for drug runners travelling between British Columbia and Alberta.

In another case involving PSAC members, a fitness test for Department of National Defense firefighters is being challenged as unsafe work. The DND firefighters involved in the case said the test, which involves 10 different tasks such as climbing up and down a ladder or dragging a 200-pound dummy, is too strenuous and “constitutes a danger,” said Bennie. The case is awaiting hearing by an appeals officer.

Working without cuffs unsafe: guards

A group of maximum security prison guards at the Kent Penitentiary in British Columbia refused to work in September 2001, just after the assistant deputy commissioner of the Correctional Services of Canada’s Pacific Region issued a memo prohibiting the guards from carrying handcuffs as a routine practice.

The idea of the new prohibition was to remove any overt symbol of authority in daily interactions between inmates and the guards.

“It’s an interesting sociological theory, but we don’t dispute theories,” said Qussai Samak, health and safety advisor for the Congres des Syndicats Nationals, with which the prison guards’ union is affiliated. “All we are interested in is the safety tools that are necessary for employees to carry out work in a safe and effective manner, for themselves and for the inmates, are made available.”

The union wasn’t consulted when Correctional Services Canada issued the directive, he added.

According to the directive, guards can carry handcuffs only after an individual risk assessment warrants their use. Otherwise, handcuffs would be made available at each of the four control post bubbles positioned between the living units. As the officer posted at the control bubble isn’t allowed to leave the post, a guard responding to an incident is expected to run to the nearest bubble to fetch the restraints.

In challenging this directive, correctional officer Juan Verville said the measures in place were inadequate to deal with risk of injury in case of spontaneous assault. Requiring guards to run to one of the four control post bubbles to fetch a pair of handcuff would mean any officer involved in an assault would have to struggle longer without any mean of restraint, he claimed.

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