Canadian Safety Reporter

December 2018

Focuses on occupational health and safety issues at a strategic level. Designed for employers, HR managers and OHS professionals, it features news, case studies on best practices and practical tips to ensure the safest possible working environment.

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2 Canadian HR Reporter, a Thomson Reuters business 2018 CSR | December 2018 | News around them, as well as an in- ner courtyard with entrances to the main building where the living units are housed. The in- ner courtyard has four doors ac- cessing the living units and two doors accessing program and service areas, which are con- trolled by three armed control posts, two of which are elevated — EM-14 at the west end of the inner courtyard and EM-22 at the east end. The facility has a main com- munication and control post that monitors all doors and the inner courtyard and co-ordi- nates the movement of inmates. Staff in the control posts moni- tor the inner courtyard and con- firm when it is clear and when to release inmates. Normally, all three con- trol posts in the courtyard are manned when the gymnasium is in use — weekday evening shifts and on weekends. How- ever, past practice for when the gymnasium wasn't being used — during daytime on weekdays — post EM-14, which overlooks the gymnasium, wasn't staffed. In 2011, construction made cer- tain areas unavailable for rec- reation, so the gymnasium was used in the daytime during the week and EM-14 was staffed. Once the construction was completed in 2012, the regular gymnasium schedule returned and EM-14 was left unstaffed during the day. However, shortly after the regular recreation schedule re- sumed in 2012, an employee at the institution instigated a work refusal because EM-14 was un- manned during the day. While a joint hazard analysis was con- ducted, CSC kept EM-14 staffed for about three years. A health and safety officer completed the analysis on May 26, 2015, and determined EM-14 could return to recreation use only on eve- nings and weekends. CSC informed its correctional officers that EM-14 would go back to evenings and weekends staffing only, and officer Sandra Courtepatte immediately filed a work refusal, claiming it created danger for employees. After a joint committee investigation failed to reach a conclusion, a delegate appointed by the Al- berta Minister of Labour inves- tigated. Institution ordered to resume all-day staffing of control post The ministry delegate found the lack of staffing of control post EM-14 during weekdays con- stituted a danger to employees at work, as it prevented a "rapid armed emergency response" to certain areas that were "blind spots" that the other control posts couldn't see due to over- hangs in the inner courtyard. The delegate issued an order under the Canada Labour Code for CSC "to take measures to provide an equivalent level of protection to employees in all areas of the courtyard" — mean- ing it should continue to staff EM-14 continuously, as it had since 2011. CSC appealed the order, ar- guing EM-14 had never been meant to provide an immediate armed response during move- ment of inmates in the court- yard, as evidenced by the staffing schedule before 2011. CSC also pointed out that no major as- saults had ever taken place in the inner courtyard during the time EM-14 was empty, with the ex- ception of one incident in early 2011 in which correctional offi- cers rapidly gained control of the situation. In addition, CSC said that the dangers identified by the min- istry delegate were general and part of the normal condition of employment for correctional officers in a maximum security institution. The tribunal noted that the Canada Labour Code defined "danger" as "any hazard, condi- tion or activity that could rea- sonably be expected to be an imminent or serious threat to the life or health of a person ex- posed to it before the hazard or condition can be corrected or the activity altered" — Courte- patte's work refusal was on the basis of her claim that there was a condition in the workplace that represented a danger under this definition. The tribunal also noted that normal conditions of employ- ment limited the personal right of employees to refuse danger- ous work but employers had an obligation to prevent or reduce dangerous conditions as much as possible. Correctional officers in particular had a certain level of danger in their job descrip- tion, which included "direct daily exposure to inmates who may be agitated, unpredictable or unco- operative or who may attempt to intimidate or resort to violence" and there was no real way to con- trol the frequency or duration of difficult situations. The condition causing Courte- patte's work refusal was an in- creased risk of injury or death from the blind spots in parts of the inner courtyard when con- trol post EM-14 wasn't staffed, meaning those locations weren't covered by an "immediate armed response." The tribunal found that this hazard could indeed be expected to be a serious threat to Courtepatte's life or health, and it could be corrected before the situation became a danger — both determinative elements on whether the condition could be considered to warrant a work refusal. The tribunal also found that EM-14 was staffed when inmate and officer traffic was increased during recreational times, so it was seen as a necessary proce- dure to ensure safety — and the other control posts were staffed all of the time. When EM-14 wasn't staffed, there wasn't as much traffic, but there could be some during the day for various reasons. In addition, though CSC pointed out there had been no incidents except for one that was quickly taken care of, most of the previous few years had seen post EM-14 staffed at all times. As a result, the tribunal found that while a certain level of dan- ger was expected as part of the job for correctional officers, CSC didn't take all reasonable steps "to eliminate, reduce, or control the hazard" Courtepatte and other correctional officers faced in the inner courtyard. Since all reasonable steps weren't taken, the circumstances caused by the lack of staffing post EM-14 was not a normal condition of em- ployment. The tribunal upheld the min- istry delegate's order that CSC should staff control post EM-14 and rectify the situation prompt- ing Courtepatte's work refusal. For more information see: • Correctional Service of Canada v. Courtepatte, 2018 CarswellNat 5771 (Can. OH&S Trib.). Danger < pg. 1 Blindspots not covered by immediate armed response Credit: Shutterstock/Andrisk

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