Canadian Employment Law Today

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GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: customersupport. legaltaxcanada@tr.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com Sales Manager: Paul Burton Email: paul.burton@thomsonreuters.com Phone: (416) 649-9928 Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Was Tessier's workplace safe enough for him to work? OR Did Tessier face a danger in the workplace justifying a work refusal? IF YOU SAID the workplace was safe enough for Tessier to work, you're right. e tribunal noted that for an activity in the workplace to be a danger to an employee, it must "reasonably be expected to be a seri- ous threat to the life or health of a person exposed to it," and not just be hypothetical. e tribunal also noted that while Tes- sier indicated his Dec. 4 work refusal was a continuation of his Feb. 28 one, there was no allowance for this under the Canada Labour Code. As a result, each individual work re- fusal must be evaluated on its own merits. e tribunal agreed with the fi ndings of Canada Post and the HRSDC in that there was no specifi c danger to Tessier on the dates of his Dec. 4 work refusal. ough the humidity at the time was 18 per cent, there was no defi nitive proof that it would aggra- vate Tessier's asthma to the point where his life and health would be in danger. It had been established that Tessier's asthma was aggravated by exposure to low humidity lev- els, but Canada Post determined much of the time the humidity level was over 25 per cent. In addition to taking medication, Tessier was able to go to other areas in the facility where the humidity was higher — or where more dehumidifying units were located — if his asthma became troublesome, which was Canada Post's reasonable accommodation measures. is accommodation lessened the chance of any real danger to Tessier, said the tribunal in dismissing Tessier's appeal. "While (the) medical information sup- ports a conclusion that low humidity levels are likely to exacerbate symptoms of asthma, I have not been presented any basis on which to fi nd that exposure, in and of itself, to a rel- ative humidity level of 18 per cent as it was on Dec. 4, 2014, poses an imminent or seri- ous risk to Mr. Tessier's life or health," said the tribunal. "While it is possible that that lengthy exposure to extremely low levels of relative humidity with no opportunity for relief might exacerbate his asthmatic condi- tion, this is not the situation that prevailed on Dec. 4, 2014, and in the weeks that fol- lowed." See Tessier v. Canada Post Corpo- ration, 2017 CarswellNat 5419 (Can. Occ. Health & Safety Trib.). Worker unhappy with safety progress refuses work THIS INSTALMENT of You Make the Call involves a Canada Post employee who wasn't happy with his employer's handling of his environmental sensitivity. Denis Tessier was a maintenance techni- cian for Canada Post Corporation at its Ot- tawa mail processing plant. Tessier suff ered from asthma that was exacerbated by low relative humidity and the dry air that results. In 2012, Tessier began experiencing wheez- ing, fatigue and lightheadedness at work due to the dry air and low humidity during win- ter and the use of heating in the building. Tessier fi led a hazard report and a griev- ance in December 2012 relating to his ad- verse health eff ects in the workplace. He followed this up with a formal complaint to Human Resources and Social Development Canada (HRSDC) in January 2013, and even- tually refused to work on Feb. 28, 2014, when things weren't being done to his satisfaction. An HRSDC health and safety offi cer investi- gated and issued a direction to Canada Post on March 7, 2014, to rectify the low humid- ity, as lengthy exposure to "extremely low humidity levels in the workplace" could be a danger to Tessier. Canada Post responded by initiating steps to fi x the problem. By December 2014, Tessier wasn't happy with Canada Post's progress on the steps required to meet the HRSDC direction. On Dec. 4, he noted the humidity in his work- place was 18 per cent, lower than than the HRSDC recommendation of 25 per cent. He invoked his right to refuse dangerous work, claiming Canada Post's non-compliance of the March 7 direction was causing the return of his adverse health eff ects. He also claimed it was a continuation of his Feb. 28 work re- fusal, since Canada Post was still not com- plying with the HRSDC direction. Canada Post investigated the work refusal and concluded there was no danger to him. After Tessier wouldn't accept these fi ndings, it conducted a second investigation with the local joint health and safety committee. e second investigation determined that in the month leading up to Tessier's work re- fusal, the humidity level was 25 per cent or higher half of the time and all dehumidifying units were working satisfactorily. It suggest- ed having a unit in Tessier's work center with the possibility of adding more units, but the HRSDC's directive didn't stipulate a specifi c humidity level, only that there was a danger in a lengthy exposure to extremely low hu- midity — below 25 per cent. As a result, it couldn't conclude there was a specifi c dan- ger to Tessier at the time of his work refusal. Tessier contacted the labour program of HRSDC, which found a danger didn't exist, though Canada Post was still in non-compli- ance with the March 7 direction. It was im- portant to note that Tessier took medication that helped mitigate his symptoms. Tessier appealed to the Canada Occupa- tional Health and Safety Tribunal, arguing Canada Post's failure to comply with the direction created a dangerous situation for him. He also said having to take medica- tion as a condition of employment wasn't acceptable.

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