Refusing Dangerous Work Is Not Only in the Eye of the Beholder

Written by Daniel Standing LL.B., Editor, First Reference Inc.

Hassan v City of Ottawa (OC Transpo), 2019 OHSTC 8 confirms the principle that an employee’s belief in a work-related threat that is purely subjective and hypothetical will not allow the employee to invoke the exceptional remedy under the Canada Labour Code to refuse to work.

To legitimately refuse to work on this basis, the employee’s perception of danger must also be objectively reasonable. In this case, the employee’s refusal failed to meet that threshold.

Key facts

The employee was a bus driver working for the City of Ottawa (OC Transpo). He had developed a negative relationship with one of the employer’s mobile supervisors, an individual with whom the employee had no reporting relationship. The acrimony between them was traced to an incident that occurred on October 14, 2017. On that date, according to the employee, the mobile supervisor told him that the employer was trying to contact him to assign him a route. He alleged that while he was walking off his bus, the mobile supervisor put his hand up, making physical contact with him, first holding him and then pushing him back. When the employee asked him why he had done it, the mobile supervisor apologized for what he described as an accident. According to the mobile supervisor, the incident was nothing more than a misunderstanding that involved inadvertent contact with the employee while making a hand gesture.

Following the incident, the employee made a workplace violence complaint against the mobile supervisor and went on medical leave. Due to a recommendation by his physician that he be placed on accommodation duties, the employee was assigned to clean buses at one of the employer’s garages from January 31, 2018 to February 4, 2018. While leaving the washroom during his first shift at the garage, the employee crossed paths with the mobile supervisor, who “sneered” at the employee, and “stared him down.” The encounter happened in a public place and lasted only a few seconds. No words were spoken between them and no physical contact or gestures occurred.

The next day, the employee emailed his supervisor, informing him that he no longer felt safe working in the same location as the mobile supervisor. The employee’s supervisor investigated the complaint and, determining that there was no safety issue, ordered the employee to return to work his shift on February 2, 2018. The employee returned to his physician on February 2, 2018, and was cleared to return to work two days later with no indication that he should avoid contact with the mobile supervisor. The employee’s next scheduled shift was February 5, 2018, and in the afternoon on that day, he invoked his right to refuse to work. To justify his refusal, he pointed to the interactions he had with the mobile supervisor on October 14, 2017, and January 31, 2018, as well as other past situations where he alleged that the employer had failed to dispatch special constables to incident scenes as he had requested.

The refusal to work triggered a series of investigations and reviews under the Code: first by the employee’s supervisor, then by the Work Place Health and Safety Committee as prescribed by the Code, and, finally, by a ministerial delegate under the Labour Program of Employment and Social Development Canada. At each stage, the same conclusion was reached: the employee’s refusal to work was unfounded. It was the last decision, that of the ministerial delegate who determined that the employee was not exposed to a danger, that was the subject of the appeal in this case.

The issue of the appeal

The issue in the appeal was whether the employee was exposed to a danger as defined in the Canada Labour Code when he exercised his right to refuse to work on February 5, 2018. More specifically, was the incident that took place between the employee and the mobile supervisor on January 31, 2018, a condition in the employee’s workplace that constituted a danger?

The appeals officer’s decision

The appeals officer began his analysis by reviewing the key provisions of the Canada Labour Code that set out when an employee may refuse to work. This right arises “when an employee while at work has reasonable cause to believe that […] a condition exists in the workplace that constitutes a danger to the employee […].” The Code defines danger to mean “any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered.”

The right to refuse to work is described as an important but exceptional remedy under the Code to ensure the protection of employees. The Code is designed such that a refusal to work is to be used as an emergency measure, and this is evident given the various provisions elsewhere in the Code that seek to protect employees and reduce risk.

The appeals officer then considered the legal test for determining whether an employee is exposed to a “danger” as set out in Correctional Service of Canada v Ketcheson, 2016 OHSTC 19. The test involves determining:

a) the nature of the alleged hazard, condition or activity;

b) whether the hazard, condition or activity could reasonably be expected to be an imminent or serious threat to the life or health of the person exposed to it; and

c) whether the threat can be eliminated by correcting the hazard or condition or altering the activity that causes the threat.

The appeals officer first sought to identify the “condition” that was alleged to present a threat to employee’s life or health. Based on the January 31, 2018, interaction as the immediate cause of the refusal, he concluded that “[a] reasonable person observing the scene is not likely to conclude that this encounter constituted a threat to one’s health.” This conclusion was based on the fact that the employee did not refuse to work immediately after this encounter. Also, he reported the situation on the following day, and his physician had cleared him to resume his normal duties as a bus operator. Even considering this interaction in the broader context of his history with the mobile supervisor, there was no basis for concluding objectively that the employee was exposed to a danger by the mere presence of the mobile supervisor three months after the October 14, 2017, incident.

The appeals officer explained that an objective test must be applied to the concept of danger, and the objective element is inherent in the phrase “reasonably expected to be” in the definition of danger. In a case such as this, where the employee refuses to work because of a condition that threatens the employee’s mental health, he or she must present clear and compelling medical evidence establishing an actual or potential mental illness as well as any link between the illness and the alleged situation at the work place. In this case, the employee’s belief that he was in danger was subjective and hypothetical and did not rise to the level of an objectively threatening situation. The appeals officer held that the employer may have a duty to accommodate the employee’s medical issues, but those obligations fall outside the parameters of the right to refuse as set out in the Code.

Finally, the appeals officer decided that the allegations that the employer was unresponsive to the employee’s requests for assistance after the alleged assault on October 14, 2017, and other situations where requests for assistance were not followed up were too remote from the circumstances on February 5, 2018, to have contributed to the refusal to work.

Since the evidence did not establish that the employee was exposed to a condition that could reasonably be expected to threaten his health, it was unnecessary to go further in the test and consider whether the threat was serious or imminent. For these reasons, the appeals officer concluded that the ministerial delegate had reached a well-founded decision that there was an absence of danger. As a result, the appeal was dismissed.

Takeaways for employers

The right to refuse work is a powerful remedy open to employees in limited circumstances: it is not enough for the employee to believe he or she is in danger; the apprehension of danger must also be objectively reasonable. This is the standard that employers should apply when doing their investigations under the Code. Since the Code allows an employer to take disciplinary action against an employee who has wilfully abused the right to refuse dangerous work, employees who invoke and maintain the right to refuse to work for trivial reasons run a significant risk. Employers must keep in mind that such disciplinary action can only take place after all of the applicable investigations and appeals are completed.

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