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The right to refuse unsafe work is a core right of both federally and provincially regulated workers in Canada. For workers in provincially regulated industries in Ontario, this right is protected under the Ontario Health and Safety Act. For workers in industries regulated by the federal government, this right is protected under the Canada Labour Code (the “CLC”). The legislation surrounding this right in the CLC is extensive but its central principles are outlined in section 128 (1) of the CLC as follows:
128(1) Refusal to work if danger
Subject to this section, an employee may refuse to use or operate a machine or thing, to work in a place or to perform an activity, if the employee while at work has reasonable cause to believe that
(a) the use or operation of the machine or thing constitutes a danger to the employee or to another employee;
(b) a condition exists in the place that constitutes a danger to the employee; or
(c) the performance of the activity constitutes a danger to the employee or to another employee.
Often, the “dangers” referred to in the above legislation arise from malfunctioning equipment, unsafe work premises, and ineffective safety equipment. As the recent decision, Karn v. Canada (Attorney General), 2017 FC 123, shows, however, the danger can also be an employee’s exposure to violence and abusive behaviour at his or her place of work.
From May 2014 to February 2015, the Applicant, an employee with the Department of Foreign Affairs, Trade and Development, filed several grievances under various work safety legislations in regard to the conduct of one of her supervisors. These grievances ranged from accusations of abusive behaviour, failure to accommodate a medical condition, and even workplace violence, but were all made in regard to one of her supervisors. Essentially, the Applicant was alleging that her exposure to her supervisor constituted a danger to her person.
The Applicant informed her employer of her refusal to work and the employer immediately investigated, soon determining that a danger did not exist. Dissatisfied with this finding, the Applicant followed the correct procedure under s. 128 (10) of the CLC and notified her employer as well as the Local Health and Safety Committee at her work. The Committee failed to reach a consensus about whether or not a danger existed and the Applicant’s employer directed her to return to work.
The Applicant continued to refuse to work and referred the matter to the Ministry of Labour. A Labour Affairs Officer for the Ministry of Labour conducted an investigation on May 13, 2015 and sent a memorandum to the Regional Director, informing her that a danger to the employee did in fact exist and that the employer should be advised to correct the situation. Surprisingly, the Regional Director refused to investigate the matter further as it was deemed to be under the purview of a different legislation and informed the Applicant that she was no longer entitled to refuse work while in the presence of her supervisor.
The Applicant filed an application for judicial review of this decision with the Federal Court in hopes of having it overturned.
The Court determined that the appropriate standard of review of the Regional Director’s decision was “reasonableness” and, based on the submissions of both parties, found that it was unreasonable and set it aside.
The Applicant argued that the Regional Director was required to investigate based on the report of danger submitted by the Labour Affairs Officer. Furthermore, she argued that the decision of the Regional Director was given in a dismissive manner that did not provide reasons beyond saying simply that she should apply elsewhere for relief. Justice Roussel agreed with this argument, saying that “the Regional Director’s decision was not justified, transparent or intelligible.”
The Respondent attempted to argue that the Regional Director’s decision was both reasonable and that an investigation had not even occurred. Justice Roussel dismissed these arguments, citing that the document which indicated that an investigation had yet to occur was undated while the memorandum establishing that a danger occurred clearly indicated when it was sent.
Due to the unreasonableness of the Regional Director’s decision, the Applicant was awarded costs and disbursements and the matter was remitted back to the Minister of Labour for reconsideration
Workplace abuse and harassment is not to be taken lightly and federally regulated employees should look to this decision and feel encouraged to exercise their rights to the fullest. If you feel endangered at your place of work and have had your claims dismissed by your employer or even the local health and safety representatives, call Monkhouse Law for a free thirty minute consultation regarding your rights.
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