Canada Employment and Immigration Union - http://ceiu-seic.ca/en/health-and-safety/labour-board-decision-supports-right-to-refuse-dangerous-work/
September 7, 2007

Labour board decision supports right to refuse dangerous work

When Customs Officers in Fort Eric, Ontario, exercised their right to refuse dangerous work on two occasions in November 2005, management claimed the situations were the same as previous refusals in August and October of the same year.

On that basis, management declined to investigate the actions in November, and ordered the refusing Officers back to work. In a case heard by the Public Service Labour Relations Board (PSLRB), the union successfully argued that management had acted illegally.

The decision by the PSLRB touched on a number of important safety issues. Further information on the right to refuse dangerous work is provided elsewhere on this website.

The case

In their complaints to the PSLRB, Customs Officers Ferrusi and Giornofelice alleged that the employer had failed to follow proper procedures when they exercised their right to refuse dangerous work pursuant to Part II of the Canada Labour Code (“the Code”).

Briefly, the facts are these:

On November 11 and 16, 2005, the complainants exercised their right to refuse work under section 128 of the Code. In addressing these refusals, the employer linked them to two earlier refusals to work which had occurred on August 18 and October 24, 2005. In the earlier actions, a Health and Safety Officer from Human Resources and Social Development Canada (HRSDC) investigated the work refusals and found no danger to exist. Based on these findings and management’s assessment of the refusals of November 11 and 16, the employer concluded that the November actions constituted a continuation of the earlier actions. As a result, management informed the Officers they no longer had a right to refuse under the Code and ordered them back to work without either conducting an investigation or permitting one by a safety officer from HRSDC. Management gave the refusing Officers a letter that concluded with:

Therefore, I ask that you return to your duties immediately. Your continued refusal to report to work will be considered as unauthorized absence and you will not be paid for the remainder of your shift. In addition, disciplinary action may be taken, which could include a financial penalty.

The decision

In the PSLRB decision, Board member Bilson found that the employer was in violation of the Canada Labour Code. Specifically, she found that the employer had no unilateral right to decide that the November work refusals were simply a continuation of those from August and October and, on that basis, to refuse to participate in an internal investigation or to permit an investigation by a Health and Safety Officer:

[60] The point is that it is not open to the employer to make the unilateral decision to characterize situations as continuations of earlier situations, without permitting employees to invoke the procedures intended to provide them with means of obtaining an assessment of workplace dangers that is independent of the tensions and operational pressures of the workplace.

In addition, the employer was found to have violated section 147 of the Code by making improper threats of reprisal against the employees who had exercised their rights. Particularly relevant here was the letter given to the refusing officers which concluded with “In addition, disciplinary action may be taken, which could include a financial penalty.”

The right to refuse dangerous work is a key workplace protection for CEIU members. Winning this protection in the Canada Labour Code was a major gain for workers in the federal sector but, as always, the law has real effect only when it is enforced. The complaints by Customs Officers in Fort Erie are an important defense of the right to refuse dangerous work, and a strong reminder that we must be prepared to do the same.

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