Written by Cristina Lavecchia, Editor, First Reference
The Ontario Labour Relations Board (OLRB) recently dismissed an application where an employee claimed that her employer threatened her with discipline for exercising her right to refuse unsafe work. Why? The employee did not have the right to delay the employer’s investigation of her work refusal, to wait until her preferred union representative completed a personal matter and attended at the workplace.
The employee is a correctional officer whose union was nearing a strike deadline.
Upon arriving to work, the employee learned that 50 of her colleagues had called in sick and the institution was being run by members of management. Only five other correctional officers showed up to work that day.
When learning of the absences of their colleagues, the employee and the five other correctional officers advised management that they were engaging in a work refusal, under section 43 of the Occupational Health and Safety Act (OHSA), because they believed that there was insufficient staff to operate the institution safely.
The employer advised that it was going to immediately begin a stage one work refusal investigation, as required by the OSA. The employee wanted a particular union representative, Ms. Galloway, to be her representative during the investigation, since there were no health and safety representatives at work at the time. However, the employee’s requested union representative could not attend the workplace immediately because she had personal issues to take care of.
The employer told the correctional officers that if they did not participate in the investigation then they would have effectively abandoned their work refusal, and if there was no work refusal and the employees refused to work, they could be found to be insubordinate and disciplined. The employee took this as a “threat”.
The five other correctional officers, not including the employee, were content to have another union representative, from the maintenance department (who was at work) as their representative.
The employee filed a complaint, claiming that the employer’s alleged “threat” was a reprisal under section 50 of the OHSA. The OHSA prohibits employers from penalizing workers in reprisal for exercising their rights or obeying the law.
The OLRB noted that under section 50 of the OHSA, the onus is on the employer to prove that it did not penalize, or threaten to penalize, the applicant for exercising a right under the OHSA.
In this particular case, the OLRB came to the conclusion that the employer did not threaten to penalize the employee because she engaged in a work refusal. The OLRB reasoned that,
15. …the employee conduct which led to the “threat” was the insistence on waiting two hours before commencing the stage one work refusal investigation. The “threat” was advice to the refusing employees that it was not acceptable to wait two hours to conduct the investigations (which the majority all understood had to be done individually), and that insisting on waiting for Ms. Galloway would lead him to conclude they were abandoning the work refusal. I am satisfied Mr. Wilson was not threatening the applicant for engaging in a work refusal per se.
16. …she had no right to hold up the work refusal process until Ms. Galloway completed her personal matter and attended at the workplace.
17. Section 43 of the Act is predicated on a quick resolution at first stage of the work refusal investigation. In this regard, s. 43(4) of the OHSA says the worker shall “promptly” report the circumstances to the employer who shall “forthwith” investigate. S. 43(4) also states a right to a representative “if there is such” and “who shall attend without delay”.
18. In these circumstances, there is no violation of s. 50. The applicant insisted she had the right to wait for Ms. Galloway. The employer was entitled to advise the applicant, as it did, that there is no such right and that a refusal to participate in the work refusal process in a timely manner could be taken as an abandonment of the work refusal which could lead to disciplinary consequences if the applicant continued to refuse to work.
Lessons for employers
An employer is not allowed to dismiss, discipline, suspend, penalize or threaten to do any of those things if a worker refuses unsafe work. As mentioned above, this is called reprisal and is prohibited by the OHSA.
The OLRB in the above matter noted that, the onus is on the employer to prove that it did not penalize, or threaten to penalize, the applicant for exercising a right under the OHSA. In doing so, the OLRB made the following suggestions (see paragraph12). The employer can argue that:
- the applicant did not exercise a right under the OHSA,
- there was no penalty or threat of penalty imposed on the applicant, or
- if there was a penalty or threat of penalty, it was not connected to the exercise of a right under the OHSA. The last point is what the employer proved in the above noted matter.