Work refusals for immediate danger only: Tribunal

Correctional officers claimed reduction in managers on duty would increase response time in emergencies, but no past incidents and mitigation plan reduced risk

Work refusals are for situations with imminent risk and danger and not to contest staffing policy, the Canada Occupational Health and Safety Tribunal has stated in dismissing an appeal by correctional officers who engaged in work refusals following the reduction in managers overseeing combined institutions.

On April 1, 2014, Correctional Service of Canada (CSC) implemented a new policy for a number of locations across Canada that included both a medium security and a minimum security institution next to each other. The new policy integrated the administration of such institutions so they shared offices.

The integration at two locations — Beaver Creek/Fenbrook in Gravenhurst, Ont., and Collins Bay/Frontenac in Kingston, Ont., involved the elimination of a correctional manager position on the morning shift on the minimum security side of the “clustered” institutions. Correctional managers are responsible for the daily operations of the institution, such as operational planning, financial management, staffing, inmate movement, visits, work schedules, and supervising correctional officers. With the integration, the correctional manager on the medium security side would also oversee the minimum security side.

The elimination of the managerial position prompted several correctional officers at both Beaver Creek and Collins Bay to file work refusals under the Canada Labour Code, claiming the lack of a correctional manager during the morning shift on the minimum security side created a danger in the workplace for officers there because the manager located on the medium security would take longer to respond to an emergency on the minimum security side.

A federal health and safety officer investigated the work refusals at Beaver Creek and determined there was a danger. CSC responded to the decision by developing a mitigation strategy in May 2014 that involved training, new communication protocols, and contingency plans — CSC claimed that under the strategy, there would be no delay in response to a danger on the minimum security side. The health and safety officer accepted this strategy and ruled there was no longer a danger as there was no emergency or unusual situations at the time of the work refusals — there were no reported incidents at either Beaver Creek or Collins Bay that represented a threat or risk to employees between 2012 and 2017 —  and a correctional manager could direct an emergency response from anywhere in the combined institution — on the morning shift, this would be the manager still on duty on the medium security side. However, some correctional officers felt the danger had not been taken care of and five engaged in work refusals once again — four at Beaver Creek and one at Collins Bay.

The same health and safety officer investigated the circumstances and once again found there was no danger to any of the correctional officers. The correctional officers appealed the decisions to the tribunal, while CSC argued that there was no danger outside of that which was a normal condition of employment for correctional officers. CSC also accused the correctional officers of using work refusals to challenge what was essentially a policy decision — the administrative combining of the institutions.

The tribunal noted that inmates who were classified as minimum security required a lower degree of supervision than medium security inmates — no fence and a greater amount of freedom of movement — and staff in minimum security institutions didn’t carry firearms. As a result, the risk of employees being injured was lower, as was the staffing requirements as set out in CSC’s national standards.

The tribunal referred to the test established by the Federal Court of Appeal in 2008 to determine a danger warranting a work refusal: the existing hazard or condition is likely to present itself; the employee will be exposed to the hazard or condition; exposure could cause injury or illness to the employee at any time; and the injury or illness will occur before the hazard is corrected.

Given there had been no reported incidents at the institutions in the past, the hazardous condition that concerned the correctional officers in the minimum security side was not likely to present itself — a failure to meet the first part of the test determining if there was a danger, said the tribunal. While the officers claimed only having a manager on the medium security side increased response time to an emergency, the tribunal noted that, as the health and safety officer pointed out, managers could respond from anywhere. In addition, the manager wasn’t a first responder and didn’t have to be physically present to deal with an emergency, said the tribunal.

The issues the correctional officers raised were really about CSC’s staffing policy and should be addressed by the health and safety committee, said the tribunal, adding that work refusals under the code are for emergency situations and didn’t apply in these circumstances.

The tribunal confirmed the decisions of the health and safety officer and dismissed the correctional officers’ appeal.

“(Work refusals) are for high risk situations where decisions have to be made in circumstances where employees cannot wait for committee meetings and complaint procedures,” the tribunal said in its dismissal of the appeal. “To reiterate, there was no emergency, or anything like it, on the days of the work refusals and there were no foreseeable threats on the horizon.”

For more information see:

Stayer v. Correctional Service of Canada, 2018 CarswellNat 5769 (Can. OH&S Trib.).

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