Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2018 More Cases WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Canada Professional Development Centre's live and on-demand webinars discussing topics such as pay equity audits, marijuana in the workplace, and dealing with sexual harassment in the #MeToo era. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. « from WORK REFUSALS on page 1 New protocols and contingency plans reduced risk under the Canada Labour Code, claiming the lack of a correctional manager on the morning shift created a danger in the work- place by increasing the response time from the manager on the medium security side to deal with a problem on the minimum security side. A federal health and safety officer inves- tigated the work refusals at Beaver Creek and determined there was a danger. CSC responded to the decision by developing a mitigation strategy by early May 2014 that involved training, new communica- tion protocols, and contingency plans — CSC claimed that under the strategy, there would be no delay in response to a danger on the minimum security side. e health and safety officer accepted this strategy and ruled there was no longer a danger as there was no emergency or unusual situations at the time of the work refusals — there were no reported incidents at either Beaver Creek or Collins Bay that represented a threat or risk to employees between 2012 and 2017 — and a correctional manager could direct an emergency response from anywhere in the combined institution — on the morn- ing shift, this would be the manager still on duty on the medium security side. However, some correctional officers felt the danger had not been taken care of and five engaged in work refusals once again — four at Beaver Creek and one at Collins Bay. e same health and safety officer inves- tigated the circumstances and once again found there was no danger to any of the cor- rectional officers. e correctional officers appealed the decisions to the tribunal, while CSC argued that there was no danger out- side of that which was a normal condition of employment for correctional officers. CSC also accused the correctional officers of us- ing work refusals to challenge what was es- sentially a policy decision — the administra- tive combining of the institutions. e tribunal noted that inmates who were classified as minimum security re- quired a lower degree of supervision than medium security inmates — no fence and a greater amount of freedom of movement — and staff in minimum security institu- tions didn't carry firearms. As a result, the risk of employees being injured was lower, as was the staffing requirements as set out in CSC's national standards. e tribunal referred to the test established by the Federal Court of Appeal in 2008 to de- termine a danger warranting a work refusal: the existing hazard or condition is likely to present itself; the employee will be exposed to the hazard or condition; exposure could cause injury or illness to the employee at any time; and the injury or illness will occur be- fore the hazard is corrected. Given there had been no reported in- cidents at the institutions in the past, the hazardous condition that concerned the correctional officers in the minimum secu- rity side was not likely to present itself — a failure to meet the first part of the test de- termining if there was a danger, said the tri- bunal. While the officers claimed only hav- ing a manager on the medium security side increased response time to an emergency, the tribunal noted that, as the health and safety officer pointed out, managers could respond from anywhere. In addition, the manager wasn't a first responder and didn't have to be physically present to deal with an emergency, said the tribunal. e issues the correctional officers raised were really about CSC's staffing pol- icy and should be addressed by the health and safety committee, said the tribunal, adding that work refusals under the code are for emergency situations and didn't ap- ply in these circumstances. e tribunal confirmed the decisions of the health and safety officer and dismissed the correctional officers' appeal. "(Work refusals) are for high risk situa- tions where decisions have to be made in circumstances where employees cannot wait for committee meetings and com- plaint procedures," the tribunal said. "To reiterate, there was no emergency, or any- thing like it, on the days of the work refus- als and there were no foreseeable threats on the horizon." For more information see: • Stayer v. Correctional Service of Cana- da, 2018 CarswellNat 5769 (Can. OH&S Trib.). CREDIT: VICTORIA R/SHUTTERSTOCK

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