An employee’s right to refuse dangerous work includes work that is not inherently dangerous
Western Grocers operated a distribution centre in Saskatoon where it employed approximately 250 workers. The United Food and Commercial Workers union (UFCW) represented its warehouse employees. The company set and monitored weekly performance standards for its warehouse employees through a time management system. Independent specialists developed the standards and the UFCW had its own specialists review the standards as well. The standards were enforced through a written policy of progressive discipline.
One of the Western Grocers employees was Ivan Stokalko who worked the afternoon shift in the warehouse assembling orders or operating a forklift. Mr. Stokalko had 15 years seniority as a bargaining unit employee.
On Feb. 10, 2000, Mr. Stokalko informed his supervisor that he was exercising his right to refuse unusually dangerous work on the grounds that, although he could and he was prepared to continue to lift boxes onto pallets, he could not do so at a rate that would meet the performance standards as he feared injury to his shoulder as a consequence of a previous injury. His supervisor and a manager informed Mr. Stokalko that the provisions of the Occupational Health and Safety Act did not cover his situation and that he should claim workers’ compensation. Mr. Stokalko again stated that he was prepared to work, just not at the pace required.
Section 23 of the Act requires that a worker has the right to refuse to work when he has reasonable grounds to believe that the work is unusually dangerous to the worker’s health or safety until sufficient steps have been taken to satisfy the worker or the occupational health committee has investigated the matter and advised the worker otherwise.
In this case Western Grocer refused to refer the matter to the occupational health committee on the grounds that no work was being refused and therefore it was not a committee matter.
The occupational health committee wrote to an occupational health officer under the Act detailing the events and the supervisor’s statement that Mr. Stokalko would be disciplined if he did not meet the performance standards. On March 14, 2000, Western Grocers suspended Mr. Stokalko for one day for failing to meet the performance standard for the two-week period ending March 11, 2000. Mr. Stokalko had only achieved 94.5 per cent of the performance standard compared to the 95 per cent required by the employer’s policy.
Section 27(f) of the Act provides that no employer shall take discriminatory action against a worker because the worker refuses or has refused to work pursuant to section 23.
On May 8, 2000, a notice of contravention was issued under the Act requiring Western Grocer to cease its discriminatory action, to pay Mr. Stokalko any wages he would have received had he not been discriminated against and to remove any reprimand from his personnel file. Western Grocer appealed this notice of contravention. The executive director of the occupational health and safety division denied the appeal. Western Grocer then appealed the executive director’s decision to an adjudicator who dismissed the appeal in July 2001. Finally Western Grocers appealed the decision to the Saskatchewan Court of Queen’s Bench.
Western Grocer argued that it did nothing wrong in enforcing the performance standard because the standard had been reviewed and found reasonable by the union; therefore, the adjudicator could not find that Mr. Stokalko had been asked to do anything unusually dangerous.
It further argued that the Act applied to an emergency situation, not a danger resulting solely from an employee’s personal condition. Mr. Stokalko did not refuse to work based on inherent danger of the work itself but because of a prior injury. Western Grocers also pointed to the fact that after his suspension, Mr. Stokalko went back to work and met the production standard imposed with no refusal.
According to Western Grocers, the critical question was whether Mr. Stokalko had reasonable grounds to believe the work in and of itself was unusually dangerous without regard to his personal condition.
Western Grocer refused to refer the matter to the occupational health committee because it felt that there had only been a refusal to do some rather than all the work assigned. At that point, it did not question the honesty of Mr. Stokalko’s belief or argue that his previous injury did not provide reasonable grounds for his concerns.
The Court did not accept the argument made by Western Grocer that an adjudicator could not find a worker had been asked to do anything unusually dangerous because the standard had been reviewed by the union’s experts and found to be reasonable. This fact does not preclude an adjudicator under the Act from finding that Mr. Stokalko honestly believed on reasonable grounds that he was being asked to perform a series of actions that were unusually dangerous to his health.
The Court held that there was no reason why an employee would not be protected from discipline in all cases where a refusal to work is based upon an honest and reasonable belief of unusual risk of harm. Mr. Stokalko honestly believed his work assignment would result in injury and was therefore entitled to refuse to work until he was convinced otherwise or until the occupational health committee reviewed the matter. He was protected by the Act from employer discipline for his refusal. The appeal was dismissed.
For more information:
• Western Grocers v. Stokalko, 2002 SKQB 67.
One of the Western Grocers employees was Ivan Stokalko who worked the afternoon shift in the warehouse assembling orders or operating a forklift. Mr. Stokalko had 15 years seniority as a bargaining unit employee.
On Feb. 10, 2000, Mr. Stokalko informed his supervisor that he was exercising his right to refuse unusually dangerous work on the grounds that, although he could and he was prepared to continue to lift boxes onto pallets, he could not do so at a rate that would meet the performance standards as he feared injury to his shoulder as a consequence of a previous injury. His supervisor and a manager informed Mr. Stokalko that the provisions of the Occupational Health and Safety Act did not cover his situation and that he should claim workers’ compensation. Mr. Stokalko again stated that he was prepared to work, just not at the pace required.
Section 23 of the Act requires that a worker has the right to refuse to work when he has reasonable grounds to believe that the work is unusually dangerous to the worker’s health or safety until sufficient steps have been taken to satisfy the worker or the occupational health committee has investigated the matter and advised the worker otherwise.
In this case Western Grocer refused to refer the matter to the occupational health committee on the grounds that no work was being refused and therefore it was not a committee matter.
The occupational health committee wrote to an occupational health officer under the Act detailing the events and the supervisor’s statement that Mr. Stokalko would be disciplined if he did not meet the performance standards. On March 14, 2000, Western Grocers suspended Mr. Stokalko for one day for failing to meet the performance standard for the two-week period ending March 11, 2000. Mr. Stokalko had only achieved 94.5 per cent of the performance standard compared to the 95 per cent required by the employer’s policy.
Section 27(f) of the Act provides that no employer shall take discriminatory action against a worker because the worker refuses or has refused to work pursuant to section 23.
On May 8, 2000, a notice of contravention was issued under the Act requiring Western Grocer to cease its discriminatory action, to pay Mr. Stokalko any wages he would have received had he not been discriminated against and to remove any reprimand from his personnel file. Western Grocer appealed this notice of contravention. The executive director of the occupational health and safety division denied the appeal. Western Grocer then appealed the executive director’s decision to an adjudicator who dismissed the appeal in July 2001. Finally Western Grocers appealed the decision to the Saskatchewan Court of Queen’s Bench.
Western Grocer argued that it did nothing wrong in enforcing the performance standard because the standard had been reviewed and found reasonable by the union; therefore, the adjudicator could not find that Mr. Stokalko had been asked to do anything unusually dangerous.
It further argued that the Act applied to an emergency situation, not a danger resulting solely from an employee’s personal condition. Mr. Stokalko did not refuse to work based on inherent danger of the work itself but because of a prior injury. Western Grocers also pointed to the fact that after his suspension, Mr. Stokalko went back to work and met the production standard imposed with no refusal.
According to Western Grocers, the critical question was whether Mr. Stokalko had reasonable grounds to believe the work in and of itself was unusually dangerous without regard to his personal condition.
Western Grocer refused to refer the matter to the occupational health committee because it felt that there had only been a refusal to do some rather than all the work assigned. At that point, it did not question the honesty of Mr. Stokalko’s belief or argue that his previous injury did not provide reasonable grounds for his concerns.
The Court did not accept the argument made by Western Grocer that an adjudicator could not find a worker had been asked to do anything unusually dangerous because the standard had been reviewed by the union’s experts and found to be reasonable. This fact does not preclude an adjudicator under the Act from finding that Mr. Stokalko honestly believed on reasonable grounds that he was being asked to perform a series of actions that were unusually dangerous to his health.
The Court held that there was no reason why an employee would not be protected from discipline in all cases where a refusal to work is based upon an honest and reasonable belief of unusual risk of harm. Mr. Stokalko honestly believed his work assignment would result in injury and was therefore entitled to refuse to work until he was convinced otherwise or until the occupational health committee reviewed the matter. He was protected by the Act from employer discipline for his refusal. The appeal was dismissed.
For more information:
• Western Grocers v. Stokalko, 2002 SKQB 67.
