By Daniel Standing LL.B., Editor, First Reference Inc.
In a recent decision under the British Columbia, under the Workers Compensation Act, an investigations legal officer dismissed a worker’s prohibited action complaint. The worker decided not to report to work as a bartender out of concern of contracting COVID-19. The case, reported here, examines the sufficiency of evidence required to prove a prima facie complaint. In dismissing the case, the WorkSafeBC officer clarifies the employee’s duty to be physically present at the workplace while his or her claim of unsafe working conditions is dealt with under the established procedure.
The worker was a bartender whose employment abruptly ended around the same time that the COVID-19 pandemic took hold in Canada. After about two and a half months of employment, the worker contacted his manager in the early morning of March 16, 2020, raising concerns about working that day due to the outbreak of the virus. He also conveyed his understanding that he could not be penalized for staying home in this context.
The parties took vastly different views of the reasons for the worker’s eventual dismissal. The worker alleged that the dismissal was wrongfully motivated by his refusal of unsafe work. The employer countered by stating that the dismissal occurred because of the worker’s poor performance and behaviour at work during his probationary period, amounting to sufficient grounds for termination.
The officer’s decision
This matter required the officer to interpret and apply sections 47 and 48 of the Workers Compensation Act. Broadly speaking, s.48 of the Act defines “prohibited action” as including acts or omissions of the employer or union that adversely affect a worker’s terms or conditions of employment or membership in a union. This could include such things as dismissal, demotion, changes in working conditions or intimidation.
Section 47 prohibits the employer or union from taking or threatening a prohibited action against a worker for exercising their rights under the Act, for testifying on matters related to the workplace or for participating in a workplace health and safety complaint or investigation.
The officer stated that to be successful, the worker must at least show a prima facie case of prohibited action. The evidence must be capable of supporting each of the following requirements: first, the employer did something that meets the definition of “prohibited action” under s.47; second, the worker did something captured by s.48; and third, there is a causal connection between the worker’s conduct and the employer’s actions.
The first criterion was met by virtue of the allegation of dismissal-one of the explicit examples of prohibited actions in s.47. But the claim fell on the second criterion. Here, the officer noted that the mere citation of health or safety concerns does not amount to a justified refusal of unsafe work. In essence, the worker simply failed to show up for work.
It was noted that section 3.12 of the province’s health and safety regulation provides a specific procedure for the parties to follow when a worker refuses unsafe work. The procedure may involve investigation of the complaint, and, if unresolved, a member of the workplace’s joint committee and eventually a WorkSafeBC prevention officer may become involved. The procedure is intended to ensure consultation between the parties to resolve the matter.
The officer in this case stated that the right to refuse unsafe work does not allow the worker to refuse to show up for work. There were many short-term measures available to the worker that would have allowed him to stay at work while the section 3.12 process played out. He could have worn gloves, practiced handwashing hygiene, physically distanced from others and worn a mask or temporary scarf. Instead, he followed his own procedure and, in essence, refused to show up for work. Also problematic for the worker was his failure to identify or report a specific unsafe condition as contemplated by s.3.12. Rather, he merely voiced a generalized concern and his feeling of unease. Since he failed to establish the second prerequisite, his claim of prohibited action could not succeed.
Takeaways for employers
An employee’s refusal to perform certain work out of concern for his or her safety has major ramifications for both parties and the employment relationship. In these situations, employers should inform their workers that they are obligated to follow the specific procedure set out in the OHS Regulation under the WCA. The process is one predicated on communication and collaboration between the parties. This does not mean the employee can merely cite safety concerns and stay home until they feel safe. The worker must attend the workplace and be present while the procedure unfolds-which contemplates escalating measures if no agreement can be reached.
At the same time, employers should be aware that under section 3.13 of the OHS Regulation, they are prohibited from retaliating against employees who exercise their right to refuse unsafe work. To ensure that the worker remains effective while the matter under section 3.12 is ongoing, the employer can temporarily assign the worker to alternative work at no loss in pay to the worker. The Regulation states that this does not amount to prohibited action. In this case, the worker deprived the employer of a chance to effectively deal with his complaint or temporarily reassign him elsewhere while the complaint was examined. In similar situations, the employer will likely escape liability.