Fear of harassment not grounds for work refusal: Lawyer

In Nunavut, employees are permitted to refuse work due to an "unusual danger" in the workplace under the Nunavut Safety Act. The safety officer decided the harassment constituted an "unusual danger" in allowing the work refusal.

The Minister of the Environment appealed the decision and the court agreed, saying the refusal was not valid.

Unlike some jurisdictions, the Safety Act in Nunavut does not include language around workplace harassment or violence.

In this case, the territory’s legislation doesn’t protect employees from harassment and the safety officer could not issue an order to stop harassment.

"The difficulty I have with this is that such an interpretation requires a finding that the intent of the legislature was to force employees who are victims of workplace harassment to immediately exercise what is arguably the most drastic response there is to a workplace danger — that of refusing work," the judge wrote in her decision.

In fact, there is no Canadian OHS legislation that expressly permits a specific right to refuse work for harassment. However, language may exist around violence.

"Ontario is still the only jurisdiction where you can refuse work on the basis of a reason to believe that violence exists," says Cheryl Edwards, a lawyer with Heenan Blaikie in Toronto. "There are no other provisions, nationally, to refuse work for violence or threatened conduct that might be defined as violence and there’s no right to refuse work for a reason to believe that someone is going to harass."

When someone refuses work because of a fear something could happen, it’s often called an anticipatory work refusal by decision-makers, Edwards says.

"There are a fair number of cases on this and generally they say that someone can’t refuse to work because of something that they think is going to happen," she says.

Adding to the confusion is that some jurisdictions, such as Ontario, Saskatchewan and Manitoba, have harassment defined within their OHS statutes.

"Within those jurisdictions, violence doesn’t include harassment because it has its own definition," she says. "So, harassment is usually a course of conduct… think of it more as bullying and a threat of physical force."

But that’s where even further confusion often lies — when OHS professionals encounter bullying in the workplace.

"People often talk about the concept of bullying and, while that word’s never used in OHS legislation or human rights legislation, the definitions of harassment are very much like that," she says. "It obligates the employer to create a policy and program and train, but it doesn’t really go much further than that," she says.

There is yet to be a jurisdiction to tackle workplace harassment as a means for work refusal, Edwards says.

General duty provisions often exist within each jurisdiction’s health and safety legislation requiring employers to take all reasonable precautions to protect the health and safety of their employees

"The fundamentals usually are to create a policy, make sure you assess the workplace for violence, train workers about your program and your policy and then maybe what to do in the instance of violence," Edwards says.

Advanced employers will go beyond meeting legislative compliance, Edwards says.

"Hopefully the more progressive, positive employer would say, ‘Well, we’ve created a (harassment) program so we will investigate (your complaint)… because this falls generally under our desire to have a civil, respectful workplace," she says.

Legislation in Alberta is similar to that found in Nunavut, says Cristina Wendel, a lawyer at Dentons in Edmonton.

"If you look at the way (the acts) define it, it’s virtually indistinguishable," she says. "In Nunavut, they say you can refuse work if faced with ‘unusual danger.’ In Alberta, it says ‘imminent danger.’"

Employees in Alberta might face the same outcome as the Nunavut worker, but there are other courses of action, she says.

"They can file a human rights claim," Wendel says, adding that making a constructive dismissal claim may also be an option.

"They may not fit themselves into a refusal to work, but there are remedies out there for those that need them," she says.

Wendel also doubts that there will be any revisions to Alberta’s OHS laws because the province just recently completed an overhaul of the legislation.

The WSCC, which is the workers’ compensation board in both Nunavut and Northwest Territories, is looking to update its OHS legislation to include language around workplace violence and harassment.

"We have new proposed regulations that, hopefully, will come into effect next year," says Judy Kainz, chief safety officer at Yellowknife-based WSCC. "Harassment and violence are both addressed in the regulations. The employer (will have) to have policies and procedures (in place) and must take steps to provide a safe workplace for its workers."

Hoping to have a mid-year implementation, Kainz says the changes — which will be implemented in the Northwest Territories, as well — have been a long time in the making.

"If you’ve ever been in charge of getting legislation changed — and this is a large piece of legislation — it’s been a lot of work," she says.

"There will be lots of communications going out about it," she says. "Believe me, when it gets approved you will hear me cheering because it’s been a long road."

The legislation was drafted with stakeholder input. It is available for review on the WSCC’s website at www.wscc.nt.ca.

British Columbia — Bullying laws

British Columbia introduced its Workplace Bullying Prevention Act in 2012. It requires employers with more than 10 workers complete the following:

(a) establish and implement a workplace harassment policy that

(b) make a copy of the workplace harassment policy readily available for review by the employer’s workers and, at each workplace where workers of the employer are regularly employed, post and keep posted a notice advising where the copy is available for review, and

(c) provide to the employer’s workers the information, instruction, training and supervision necessary to ensure a workplace free of harassment.