Gradual implementation reasonable: Board
A Crown corporation obligated to protect employees from second-hand smoke in the workplace took years to phase in a no-smoking policy but this was reasonable due to the unique characteristics of the workplace, the Canadian Public Service Labour Relations Board has ruled.
Hélène Galarneau was a correctional officer for Correctional Service of Canada (CSC) at the Montée St-François Institution and Federal Training Centre in Laval, Que. In 2005, Galarneau, along with several other correctional officers, filed a grievance claiming CSC violated health and safety provisions in the collective agreement, which stated the employer must make “reasonable provisions for the occupational safety and health of employees.”
The grievance also claimed CSC violated the Non-Smoker’s Health Act and Charter of Human Rights and Freedoms by exposing Galarneau to second-hand smoke since her hiring in 1984 and did not do enough to stop it after the federal government banned smoking in public buildings in 1989.
Galarneau claimed her quality of life had deteriorated because of the exposure, causing health problems, stress and discomfort. She requested $30,000 in damages for the physical and psychological harm she experienced at work, including punitive damages.
CSC admitted correctional officers had been exposed to second-hand smoke but said it had to take a gradual approach because correctional institutions had different considerations from other public buildings.
For example, with the 1989 smoking ban, an exception was made for areas shared with those who weren’t public service employees, including correctional institution inmates. Inmates and employees were allowed to smoke in specific areas, including the cellblocks and visiting rooms.
In subsequent years, CSC worked with inmate representatives and unions to gradually move towards a smoke-free environment. But the majority of inmates smoked and reacted negatively to restrictions so the safety of CSC employees became a concern.
Smoking restrictions in penitentiaries were increased until a complete ban on indoor smoking was implemented in 2006. However, many inmates continued to resist and challenged the restrictions in federal court. In 2008, a complete indoor and outdoor ban was successfully challenged by inmates, so smoking remained permissible outdoors on CSC property.
Galarneau said she was exposed to inappropriate amounts of second-hand smoke in various locations, including cell blocks. She said partial bans were ineffective because ventilation systems blew smoke around inside the facility.
But it was reasonable for CSC to balance employees’ rights to a healthy workplace with inmates’ rights to smoke in their living environment, found the board. The inmates’ successful court challenge — which pointed out no blanket ban on smoking had ever been enacted in Canada — showed CSC had to keep inmate rights in mind as it implemented the policy.
“Imposing restrictions on smoking inside correctional institutions and evolving to a smoke-free environment represented a major change, which required a shift in attitudes and habits for both inmates and employees,” said the board.
“The evidence also showed that safety within correctional institutions was a concern, which the CSC could not overlook when determining its approach.”
CSC took reasonable measures to “limit and ultimately eliminate” second-hand smoke to protect the health and safety of employees, found the board. The gradual measures taken — along with seeking input from all stakeholders and considering the impact and potential dangers of an immediate ban — met the collective agreement’s requirement for reasonable provisions and were consistent with legislation and government policies, said the board. The grievance was dismissed.
For more information see:
•Galarneau v. Canada (Treasury Board — Correctional Service of Canada), 2010 CarswellNat 301 (Can. Public Service Labour Rel. Bd.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a biweekly publication that looks at workplace law from a business perspective. For more information, including a special introductory offer for new subscribers, visit employmentlawtoday.com.
