This instalment of You Make the Call involves a Canada Post employee who wasn’t happy with his employer’s handling of his environmental sensitivity.
Denis Tessier was a maintenance technician for Canada Post Corporation at its Ottawa mail processing plant. Tessier suffered from asthma that was exacerbated by low relative humidity and the dry air that results. In 2012, Tessier began experiencing wheezing, fatigue and lightheadedness at work due to the dry air and low humidity during winter and the use of heating in the building.
Tessier filed a hazard report and a grievance in December 2012 relating to his adverse health effects in the workplace. He followed this up with a formal complaint to Human Resources and Social Development Canada (HRSDC) in January 2013, and eventually refused to work on Feb. 28, 2014, when things weren’t being done to his satisfaction. An HRSDC health and safety officer investigated and issued a direction to Canada Post on March 7, 2014, to rectify the low humidity, as lengthy exposure to “extremely low humidity levels in the workplace” could be a danger to Tessier. Canada Post responded by initiating steps to fix the problem.
By December 2014, Tessier wasn’t happy with Canada Post’s progress on the steps required to meet the HRSDC direction. On Dec. 4, he noted the humidity in his workplace was 18 per cent, lower than than the HRSDC recommendation of 25 per cent. He invoked his right to refuse dangerous work, claiming Canada Post’s non-compliance of the March 7 direction was causing the return of his adverse health effects. He also claimed it was a continuation of his Feb. 28 work refusal, since Canada Post was still not complying with the HRSDC direction.
Canada Post investigated the work refusal and concluded there was no danger to him. After Tessier wouldn’t accept these findings, it conducted a second investigation with the local joint health and safety committee.
The second investigation determined that in the month leading up to Tessier’s work refusal, the humidity level was 25 per cent or higher half of the time and all dehumidifying units were working satisfactorily. It suggested having a unit in Tessier’s work center with the possibility of adding more units, but the HRSDC’s directive didn’t stipulate a specific humidity level, only that there was a danger in a lengthy exposure to extremely low humidity — below 25 per cent. As a result, it couldn’t conclude there was a specific danger to Tessier at the time of his work refusal.
Tessier contacted the labour program of HRSDC, which found a danger didn’t exist, though Canada Post was still in non-compliance with the March 7 direction. It was important to note that Tessier took medication that helped mitigate his symptoms.
Tessier appealed to the Canada Occupational Health and Safety Tribunal, arguing Canada Post’s failure to comply with the direction created a dangerous situation for him. He also said having to take medication as a condition of employment wasn’t acceptable.
You Make the Call
Was Tessier’s workplace safe enough for him to work?
OR
Did Tessier face a danger in the workplace justifying a work refusal?
If you said the workplace was safe enough for Tessier to work, you’re right. The tribunal noted that for an activity in the workplace to be a danger to an employee, it must “reasonably be expected to be a serious threat to the life or health of a person exposed to it,” and not just be hypothetical.
The tribunal also noted that while Tessier indicated his Dec. 4 work refusal was a continuation of his Feb. 28 one, there was no allowance for this under the Canada Labour Code. As a result, each individual work refusal must be evaluated on its own merits.
The tribunal agreed with the findings of Canada Post and the HRSDC in that there was no specific danger to Tessier on the dates of his Dec. 4 work refusal. Though the humidity at the time was 18 per cent, there was no definitive proof that it would aggravate Tessier’s asthma to the point where his life and health would be in danger. It had been established that Tessier’s asthma was aggravated by exposure to low humidity levels, but Canada Post determined much of the time the humidity level was over 25 per cent. In addition to taking medication, Tessier was able to go to other areas in the facility where the humidity was higher — or where more dehumidifying units were located — if his asthma became troublesome, which was Canada Post’s reasonable accommodation measures. This accommodation lessened the chance of any real danger to Tessier, said the tribunal in dismissing Tessier’s appeal.
