Rebecca Saturley, a partner at Stewart McKelvey in Halifax, fields a question on work refusals
Question: What should I do when an employee refuses unsafe work?
Answer: Most occupational health and safety legislation puts certain obligations on workplace parties when it comes to exercising a work refusal. In Nova Scotia, for example, the Occupational Health and Safety Act requires employees to:
•immediately report their refusal to a supervisor
•where the matter is not remedied to the employee’s satisfaction, report it to the committee or the representative, if any
•where the matter is not remedied to the employee’s satisfaction after the employee has reported pursuant to clauses (a) and (b), report it to the division.
In Nova Scotia, employers have a general obligation to train employees of the procedure they should follow in exercising the right to refuse unsafe work. Lack of training was an issue in Ingersoll Machine and Tool Co., where the adjudicator found, although the employer had provided training and instruction on work refusal procedures to its supervisory staff, no courses or instruction had been given to workers.
However, signs had been posted throughout the plant that outlined the procedure to be followed for reporting safety concerns, as well as notices listing names of people to contact in the case of a work refusal in the event a health and safety representative was not on site. The adjudicator said this evidence could not lead to a conclusion the employer was in violation of the legislation.
No ‘magical words’ for refusals
When it comes to refusing unsafe work, there are no “magical words” a worker needs to utter. Workers sometimes are unable to articulate what is driving the refusal or just assume everyone understands the situation as the worker does. That doesn’t mean you can be dismissive of the refusal. In fact, cases have said otherwise.
In Sproule v. Frankel Steel Ltd, the board dealt with an allegation the worker was discriminated against for having exercised his right to refuse unsafe work. The event that triggered the refusal was the complainant and another employee had been assigned to move steel beams from one area of the premises to another where they could be painted. The beams were about eight feet long and weighed 150 pounds. The method used to move them was by hoist.
At some point while moving a beam, it fell and crashed to the shop floor. When the manager arrived on the scene, there was an argument ensuing between the two employees over what caused the beam to fall. The complainant was clearly frightened by the falling beam and, when the manager ordered them both back to work, the complainant was reluctant. The manager interpreted this as insubordination and terminated the complainant.
In its ruling, the board said: “While we are sympathetic to the problem in this case that no specific reference was made by (the worker) to safety when he refused to continue working... we are of the view that there are no magical words necessary for an employee to exercise a right... In the present case we are of the view (the worker) was in all likelihood so upset about this steel beam narrowly missing him that he took it as obvious that everyone would understand that that was what he was upset about. The fact that this was not perceived by (the manager) as being (the worker’s) concern does not deprive (the worker) of the protection to which he is otherwise afforded by the... act.”
Conduct a reasonable investigation
Another case dealing with an allegation of insubordination in the face of a work refusal is Lennox Industries (Canada) Ltd. and United Steelworkers of America, Local 7235.
The grievor had not alleged any “equipment, machine, device or thing” was presenting any direct danger, but that the closeness of a coach to the grievor and the coach’s behaviour made the grievor so nervous he believed he would cut himself on the steel edges of the metal parts he was handling.
The coach was on the scene because the production line had slowed down and he was addressing the cause of the holdup. The coach determined the grievor’s workstation was the cause of the holdup and the coach ordered him to get to work. The grievor refused and asked for the assistance of a health and safety representative, but the coach ignored this and immediately disciplined the grievor with a suspension.
The board said health and safety issues trumped the “obey now, grieve later” rule and the next step for the employer was to satisfy itself on the four-fold test by conducting a reasonable investigation, namely:
•Did the grievor honestly believe his health and safety were being endangered?
•Did the grievor communicate this belief to the supervisor?
•Was the grievor’s belief reasonable in the circumstances?
•Was the danger sufficiently serious to justify a refusal?
It is only after an employer investigates each of these questions that it can fulfill its onus of proving it had just cause for disciplining the grievor or determine whether there is a valid work refusal on the part of the worker.
What if a personal characteristic of the worker creates the danger?
Believe it or not, this does happen and employers should not be quick to discipline because there is an unusual personal situation that makes the work condition hazardous. In Garda du Canada Inc. and Syndicat National des Convoyeurs de Fonds, the worker exercised his right to refuse work because he believed it was dangerous for him to carry out the work involved due to the lack of space around the driver’s seat in a truck he had been assigned to for three months.
The lack of space was attributable to the fact the worker was six foot three inches tall. The employer took the position that the worker’s issues were related to his personal circumstances and no other employee had complained about similar problems while operating the particular vehicle at issue. An occupational health and safety investigator concluded the worker had been put in danger by having the vehicle assigned to him and issued a direction to the employer.
To pay or not to pay
There are two cases employers should know about under this heading. The first is Trenton Works Lavalin Inc. v. USWA, Local 1231, where a Nova Scotia court upheld an arbitrator’s decision that found a justified work refusal resulted in employees being sent home and the employer was liable for full pay for time lost.
In that case, consideration was given to the following language in the Nova Scotia Occupational Health and Safety Act: “Where an employee has refused to work pursuant to subsection (1) and has not been reassigned to other work pursuant to subsection (5), the employer shall... pay the employee the same wages or salary and grant the employee the same benefits as would have been received had the employee continued to work.”
The second case is Ferrusi and Giornofelice v. Treasury Board (Canada Border Services Agency). The Canada Labour board found the employer liable for time lost by a customs officer by relying on s. 128.1 of the Canada Labour Code that says “employees who are affected by a stoppage of work... are deemed, for the purpose of calculating wages and benefits, to be at work during the stoppage until work resumes.”
These cases signal how important it is to know the legislation in your particular jurisdiction. In Nova Scotia, employers are able to reassign employees affected by the work refusal until the refusal is resolved. Where reassignment is not possible, the employer will be on the hook until the investigation is over and any issue is resolved.
A preventative strategy
The right to refuse unsafe work is a preventative strategy — aimed at preventing activity that is “likely to endanger” health and safety.
Boards, courts and tribunals are only concerned if there is a dangerous condition existing. Surprisingly, practitioners see few ill-conceived work refusals and, for the most part, only serious cases get litigated. Keep in mind that the right to refuse unsafe work exists to assist in the identification of potential safety issues and to provide the parties with the ability or chance to remedy them before they cause harm. Unless the officer’s decision is unfair, unreasonable or unjustifiable, remedy the situation and move forward, keeping the ambition of the legislation in perspective.
Rebecca Saturley is a partner at Stewart McKelvey in Halifax. She can be reached at (902) 420-3333 or [email protected].
